SUPERI OR COURT OF AUSTRALIA BILL
ESPLU ILULPEMfrLEJUIlSER
JJUNE 1975
THIS BILL TO ESTABLISH THE SUPERIOR COURT OF
AUSTRALIA AFFORDS AN OUTSTANDING EXAMPLE OF LIBERAL INEPTITUDE
IN GOVERNMENT AND OBSTRUCTION IN OPPOSITION.
A PAPER ENTITLED " THE NECESSITY FOR A NEW
FEDERAL COURT" WAS DELIVERED AT THE 13TH LEGAL CONVENTION
IN HOBART IN JANUARY 1963 BY MR MAURICE BYERS, Q. C. AND
MR PAUL TOOSE, Q. C, NOW^ THE SOLICITOR-GENERAL OF AUSTRALIA
AND A JUDGE OF THE SUPREME COURT OF NEW SOUTH WALES. IN
THE DISCUSSIONS ON THE PAPER THE SOLICITOR-GENERAL, SIR
KENNETH BAILEY, ANNOUNCED ON BEHALF OF THE ATTORNEY-GENERAL
THAT THE CABINET HAD AUTHORISED HIM TO DESIGN A NEW FEDERAL
SUPERIOR COURT. SIR KENNETH WENT ON TO SAY THAT THE PAPER
WOULD BE OF MATERIAL ASSISTANCE TO THE ATTORNEY-GENERAL,
SIR GARFIELD BARWICK, WHOSE CONGRATULATIONS HE GAVE TO THE
LEARNED AUTHORS. IN 1964, JUST BEFORE HE BECAME CHIEF JUSTICE,
SIR GARFIELD WROTE A 21-PAGE ARTICLE ON THE PROPOSED NEW
FEDERAL SUPERIOR COURT FOR THE INITIAL ISSUE OF THE
FEDERAL LAW REVIEW, THE JOURNAL OF THE LAW SCHOOL OF THE
AUSTRALIAN NATIONAL UNIVERSITY.
1)
ON 15 MARCH -167, IN ANSWER TO A QUESTION
' BY THE HIONOURHABLE MEMBER FOR MORETON, ATTORNEY GEN ERAL BOWEN,
NOW CH-IEF JUDGE IN EQUITY IN THE SUPREME COURT OF NEW SOUTH
WALES, SAID AN ANORMOUS AMOUNT OF WORK HAD BEEN DONE ON
THE PROPOSAL FOR THE NEW COURT BY SIR GARFIELD BARWICK AND
BY HIS OWN IMMEDIATE PREDECESSOR, MR SNEDDEN. HE PROMISED'
A MINISTERIAL STATEMENT. HE MADE THE STATEMENT ON 18 MAY.
HE DELIVERED A PAPER ON THE PROPOSAL TO THE 15TH LEGAL
CONVENTION ON 17 JULY.
IN MARCH 1968, OPENING A NEW SESSION, THE
GOVERNOR-GENERAL STATED:
" INY GOVERNMENT WILL PREPARE LEGISLATION FOR
CREATION OF A COMMONWEALTH SUPERIOR COURT TO
RELIEVE PRESSURE ON4 THE HIGH COURT."
ON 29 OCTOBER 1968, ATTORNEY-GENERAL BOWEN
ASKED A COMMITTEE UNDER MR JUSTICE KERR, LATER CHIEF JUSTICE
OF NEW SOUTH WALES AND NOW THE GOVERNOR-GENERAL, TO CONSIDER
THE JURISDICTION TO BE GIVEN TO THE PROPOSED COMMONWEALTH
SUPERIOR COURT TO REVIEW ADMINISTRATIVE DECISIONS. THE
OTHER MEMBERS WERE SOLICITOR-GENERAL MASON, LATER A JUDGE OF
APPEAL OF THE SUPREME COURT OF NEW SOUTH WALES AND NOW A
JUSTICE OF THE HIGH COURT, AND PROFESSOR WHITMORE AND
LATER SOLICITOR-GENERAL ELLICOTT, NOW THE IIONOURA13LE MEMBER
FOR WENTWORTHI. THE COMMITTEE'S REPORT WAS TABLED ON
_ ILI OCTOBELR 1971.
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I'EANTIME, /\ TTORNEY-GENERAL BOWEN AND IN THE
1969 PARLIAMENT THE NEW ATTORNEY-GENERAL HUGHES, AND UNDER
THE MCI" HAHON GOVERNMENT THE RESTORED ATTORNEY-GENERAL BOWEN,
WERE ENGAGED IN PREPARING SOME 66 COMPLEMENTARY BILLS WHICH
IT WAS DESIRED TO INTRODUCE BEFORE DEBATING THE COMMONWEALTH
SUPERIOR COURT BILL.
THUS WORK ON THIS BILL PROCEEDED THROUGH THE
PARLIAMENTS ELECTED IN 1961, 1963, 1966 AND 1969, UNDER
LIBERAL PRIME MINISTERS MENZIES, HOLT, GORTON AND MCMAHON,
LIBERAL ATTORNEYS-GENERAL BARWICK, SNEDDEN, BOWEN, HUGHES
AND BOWEN AGAIN AND, IN ONE CAPACITY OR ANOTHER, SOLICITORSGENERAL
BAILEY, MASON, ELLICOTT AND BYERS. AND AT LAST ON
27 OCTOBER 1972, THE DAY AFTER THE HOUSE OF REPRESENTATIVES
ROSE FOR THE ELECTIONS, THE LAST LIBERAL ATTORNEY-GENERAL,
SENATOR GREENWOOD, ANNOUNCED THAT THE MCMAHON GOVERNMENT
HAD REACHED THE CONCLUSION THAT THE PROPOSAL TO ESTABLISH A
COMMONWEALTH SUPERIOR COURT SHOULD NOT BE PROCEEDED WITH.
ON THE LABOR SIDE THE PROPOSAL HADBEEN SUPPORTED
AND PROMOTED CONSISTENTLY. I URGED IT AT THE ALEGAL CONVENTION
IN PERTH IN 1957 AND IN THE DEBATE ON THE ATTORNEY-GENERAL'S
ESTIMATES IN 1958 AND IN DOZENS OF SPEECHES AND QUESTIONS
IN THE HOUSE THROUGHOUT THE 1960' s. I INCLUDED THE PROPOSAL
IN THE POLICY SPEECHES I DELIVERED ON BEHALF OF THE
AUSTRALIAN LABOR PARTY AT THE ELECTIONS IN 1972 AND 1974.
THERE CAN SCARCELY HAVE BEEN A PROPOSAL WHICH
BOTH SIDES OF POLITICS HAVE WORKED ON SO LONG, BUT WHAT
HIAS BEEN THE HISTORY OF THE BILL UNDER MY GOVERNMENT?
A BILL TO ESTABLISH THE SUPERIOR COURT OF
AUSTRALIA WAS INTRODUCED INTO THE SENATE IN DECEMBER 1973 B~ Y
ATTORNEY-GENERAL MURPHY. THAT BILL LAPSED WHEN PARLIAMENT
WAS PROROGUED TO ENABLE THE QUEEN TO OPEN THE PARLIAMENT* ON
THE OCCASION OF HER VISIT To AUSTRALIA IN FEBRUARY 1974.
THE BILL WAS AGAIN INTRODUCED INTO THE SENATE ON 14 MARCH
LAST YEAR, BUT THE MOTION FOR THE SECOND READING OF THE
BILL WAS DEFEATED IN THE SENATE ON 2 APRIL 1974.
THE BILL WAS REINTRODUCED INTO THIS HOUSE AFTER
THE DOUBLE DISSOLUTION OF MAY LAST YEAR AND WAS PASSED ON
24 JULY. THiE OPPOSITION AGAIN OPPOSED THE BILL IN THE
SENATE AND THE MOTION FOR THE SECOND READING OF THE BILL
RESULTED IN A TIED VOTE ON 26 FEBRUARY THIS YEAR. SO NOW
THE BILL HAS BEEN INTRODUCED FOR A SECOND TIME IN THIS HOUSE.
THE PROPOSALS FOR THE ESTABLISHMENT OF THE.
SUPERIOR COURT WERE WELCOMED FROM THE OUTSET BY LEADERS OF
THE LEGAL PROFESSION IN AUSTRALIA. A COMMITTEE APPOINTED BY
THE LAW COUNCIL OF AUSTRALIA REPORTED IN FAVOUR IN AUGUST 1963.
SO DID THE NEW SOUTH WALES BAR ASSOCIATION. ATTORNEY-GENERAL
BOWEN TOLD THE LEGAL CONVENTION IN JULY 11967 THAT THERE WAS A
BROAD CONSENSUS THAT SUCH A COURT SHOULD BE ESTABLISHED. HE
STATED CATEGORICALLY THAT " fA DECISION HAS BEEN TAi( EN TO
ESTABLISH THE COURT" 1 AND THAT ARGUMENTS ADVANCED AGAINST THE
' itI
IDEA ARE NOW ACADEMIC", BUT A MORE CONSERVATIVE VIEW WAS / q
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TAKEN IN THE TWILIGHT YEARS OF THE LIBERAL GOVERNMENT AND
THE CONCEPT CAME TO BE OPPOSED WHEN IT WAS APPRECIATED THAT
THE BILL DESCRIBED BY ATTORNEY-GENERAL BOWEN 8 YEARS AGO
WOULD ENABLE THE SUPERIOR COURT TO ENTER UPON JURISDICTION
NOW EXERCISED BY THE SUPREME COURTS OF THE STATES,
SUCH ARGUMENTS, HOWEVER, LOSE SIGHT OF THE FACT
THAT THERE IS ALREADY A LARGE BODY OF FEDERAL LEGISLATION
WHICH WOULD FALL TO BE INTERPRETED AND ADMINISTERED BY A
FEDERAL SUPERIOR COURT IN WHICH THE LEGAL PROBLEMS OF A
JURISDICTIONAL NATURE THAT HAVE BEEN URGED AS OBJECTIONS
AGAINST THE SUPERIOR COURT WOULD HAVE NO PLACE. FOR MORE
THAN SEVENTY YEARS, INDUSTRIAL. MATTERS ARISING UNDER THE
CONCILIATION AND ARBITRATION ACT HAVE BEEN DEALT WITH BY
A FEDERAL COURT WITHOUT GIVING RISE TO SUBSTANTIAL
JURISDICTIONAL PROBLEMS.
FOR ALMOST FIFTY YEARS, THERE HAS BEEN A
FEDERAL COURT OF BANKRUPTCY, WHICH HAS SAT IN SYDNEY AND
MAELBOURNE. THESE ARE TWO EXAMPLES OF LONG-STANDING
JURISDICTIONSEXERCISED BY FEDERAL COURTS,
TO THESE HAVE BEEN ADDED IN RECENT YEARSP
SUBSTANTIAL ADDITIONAL AREAS OF FEDERAL LAW, FROM THE
VERY FIRST TRADE PRACTICES ACT IN 1965 EXCLUSIVE JURISDICTION
IN FEDERAL TRADE PRACTICES LAW HAS BEEN VESTED IN
THE INDUSTRIAL COURT, THAT WAS A MATTER INITIATED BY OUR
PREDECESSORS. THE TRADE PRACTICES ACT 1974, ADOPTED BY
THIS PARLIAMENT, CONTINUES TO RECOGNISE THE PRINCIPLE THAT
THE PROPER COURT TO iNTERPRET AND APPLY THE FEDERAL LAW ON
TRADE PRACTICES IS A FEDERAL COURT. THE TRADE PRACTICES ACT
1974 VESTS JURISDICTION IN THE SUPERIOR COURT AND, UNTIL
THAT COURT IS ESTABLISHED, IN THE AUSTRALIAN INDUSTRIAL COURT.
THERE IS BEFORE THE PARLIAMENT A NATIONAL COMPENSATION
BILL AND THE CORPORATIONS AND SECURITIES INDUSTRY
BILL. THE DRAFTING OF-A NATIONAL COMPANIES BILL IS WELL
ADVANCED. THIS HIOUSE HAS PASSED THE ADMINISTRATIVE APPEALS
TRIBUNAL BILL, THE FIRST OF A SERIES OF MEASURES INTENDED TO
BRING ABOUT A SUBSTANTIAL REFORM OF ADMINISTRATIVE LAW AT
THE FEDERAL LEVEL. 1
THiis GOVERNMENT HAS ESTABLISHED THE LAW REFORM
COMMISSION TO APPROACH THE TASK OF REFORMING THE LAW IN
AUSTRALIA ON A NATIONAL SCALE, THE LAW REFORM
COMMISSION IS CHARGED WITH THE DUTY OF CONSIDERING NOT
ONLY MATTERS WITHIN THE JURISDICTION OF THIS PARLIAMENT
BUT ALSO PROPOSALS FOR UNIFORMITY BETWEEN THE LAWS OF
THE STATES AND OF THE TERRITORIES, THE ESTABLISHMENT OF
THE LAW REFORM COMMISSION IS A RECOGNITION OF THE ABSURDITY
OF HAVING SO MANY DIFFERENCES IN LAW ACROSS STATE AND
TERRITORY BOUNDARIES, IT HIGHLIGHTS. THE NEED TO HAVE A
COURT THAT HAS JURISDICTION T-HROUGHOUT AUSTRALIA AND
THAT CAN INTERPRET AND APPLY THE LAWS ENACTED BY THIS
PARLIAMENT ON A UNIFORM BASIS THROUGHOUT THE WHOLE OF
AUSTRALIA. THE GREAT DEVELOPMENT IN FEDERAL LAW TO WHICH
HAVE REFERRED MAKES THE NEED TO ESTABLISH THE SUPERIOR COURT
MUCH MORE PRESSING, WHILE THE INTERPRETATION OF THE LAW
REMAINS WITH THE SUPREME COURTS OF THE STATES NO MATTER CAN
BE REGARDED AS BEING SETTLED THROUGHOUT AUSTRALIA UNTIL
A DECISION HAS BEEN GIVEN ON IT BY THE HIGH COURT. IT
IS TRUE THAT A DECISION OF, SAY, THE FULL COURT OF THE
SUPREME COURT OF VICTORIA IS TREATED WITH THE GREATEST
RESPECT BY THE COURT OF ) PEAL OF NEW SOUTH WALES. 11
BUT THE VICTORIAN DIECISION HAS NO BINDING FORCE ON
THE NEW SOUTH WALES COURT, EVEN THOUGH THE TWO COURTS
MAY B3E DEALING WITH , SAME SECTION OF AN ACT OF THIS
PARLIAMENT, A DECISION OF THE FULL COURT OF THE SUPERIOR
COURT WOULD BE BINDING ON THE JUDGES OF THAT COURT THROUGHOUT
AUSTRALIA, SO THAT IN THOSE IMPORTANT AREAS OF FEDERAL
LAW IN WHICH THE SUPERIOR COURT WOULD BE EXERCISING
EXCLUSIVE JURISDICTION THE ESTABLISHMENT OF THE COURT
WOULD SUBSTANTIALLY CONTRIBUTE TOWARDS CERTAINTY IN THE
LAW, THE* CASE FOR THE SUPERIOR COURT IS NOW EVEN FURTHER
STRENGTHENED BY THE ESTABLISHMENT OF THE FAMILY COURT OF
AUSTRALIA UNDER THE FAMILY LAW BILL$ THIS DECISION BY
THE PARLIAMENT IS CLEAR RECOGNITION THAT IN THIS MOST
IMPORTANT AREA OF LAW, WITH ITS OWN SPECIAL PROBLEMS AND
A NEED FOR SPECIAL PROCEDURES, THERE IS GREAT MERIT IN
HAVING A COURT THAT HAS JURISDICTION THROUGHOUT AUSTRALIA,
AND THAT CAN INTERPRET AND APPLY THAT LAW ON A UNIFORM BASIS.
THE SUPERIOR COURT WILL ENABLE A CONSOLIDATION OF
JURISDICTION THAT IS NOW EXERCISED BY FEDERAL AND TERRITORY
COURTS. IT WILL BRING TOGETHER IN THE ONE COURT THE
AUSTRALIAN INDUSTRIAL COUR-r, THE FEDERAL COURT OF BANKRUPTCY
AND THE SUPREME COURTS OF THE AUSTRALIAN CAPTIAL TERRITORY
AND THU NORTHERN TERRITORY, IT WILL ENABLE THE JURISDICTION
OF THESE COURTS TO BE EXERCISED ON A MORE RATIONAL AND
COMPREHENSIVE BASIS, I I ! e
IT IS ALMOST SEVEN YEARS SINCE THE FIRST BILL
TO ESTABLISH THE SUPERIOR COURT WAS INTRODUCED INTO THIS
HOUSE, CAN ANYONE DOUBT THAT IT IS TIME THAT WE MOVED
ON THIS MATTER? IS IT NOT TIME THE OPPOSITION STOPPED
PREVARICATING? SHOULD WE NOT NOW PUT THE INTERESTS OF ALL
AUSTRALIANS AHEAD OF STATE RIGHTS AND PARTY CONSIDERATIONS?
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