Burying the Autochthonous Expedient?
| Author | Rae Else-Mitchell |
| Published date | 01 June 1969 |
| Date | 01 June 1969 |
| DOI | http://doi.org/10.1177/0067205X6900300202 |
| Subject Matter | Article |
BURYING
THE
AUTOCHTHONOUS EXPEDIENT?
By
THE
HONOURABLE
RAE
ELSE-MITCHELL*
Although the framers
of
the Commonwealth Constitution, steeped
in the study
of
American federalism, found the United States Constitution
avaluable model which they could copy
or
adapt to the requirements
of
the
six
federating Australian colonies,1they deliberately departed
from the judicial provisions
of
that model in two major respects: first
by creating the High Court
of
Australia as ageneral court
of
appeal
from the Supreme Courts
of
the States;2 and, secondly, by empowering
the Parliament to invest State courts with jurisdiction in all matters
which might be brought before the High Court in its originaljurisdiction.3
The experience
of
more than half acentury has shown the wisdom
of
the first departure from the American precedent: differences resulting
from conflicting decisions
of
State courts have been resolved not only
in the common law fields and those where there
is
aCommonwealth
statute but also where differences have arisen as to the construction
or
application
of
State statutes
of
similar substance.4This unified law
of
the Australian States has been given no less weight than the rules laid
down in comparable situations by the House
of
Lordssand it has received
ultimate recognition by the abolition
of
appeals from the High Court
to the Privy Council.6
There was no less wisdom in the decision
of
the Founding Fathers
to provide for the vesting
of
federal jurisdiction in State
courts-the
"autochthonous expedient" as the High Court has characterized
it
7-
but
in this instance the advantages are
not
so apparent. They have
indeed been substantially overlooked in the proposal to establish a
Commonwealth Superior CourtS which
is
certain to produce many
of
the problems
of
the divided judicial system existing in the United States
of
America9and to result in the eventual burial
of
the autochthonous
expedient.
*Judge
of
the Supreme Court
of
N.S.W.
and
of
the Land
and
Valuation
Court;
formerly Lecturer
in
Australian Constitutional Law, University
of
Sydney.
1Dixon,
"The
Law
and
the Constitution" (1935)
51
Law Quarterly Review 590,597.
2
S.
73
(ii)
of
the Constitution.
3
S.
77
(iii)
of
the Constitution.
4Coates
v.
National Trustees Executors &Agency Co.
Ltd
(1956)
95
C.L.R. 494;
Crooks National Stores
Pty
Ltd
v.
Collie (1957)
97
C.L.R.
581.
5Smyth
v.
The Queen (1957)
98
C.L.R. 163; Director
of
Public Prosecutions
v.
Smith [1961] A.C. 290; Parker
v.
The Queen (1963)
111
C.L.R. 610.
6Privy Council (Limitation
of
Appeals) Act 1968 (Cth).
1The Queen
v.
Kirby;
ex
parte Boilermakers Society
of
Australia (1956) 94
C.L.R.
254,268.
8See references in note
20
infra.
9
Hart
&Wechsler, The Federal Courts and the Federal System (1953) Chs 4,
5,
8;
Bunn, Jurisdiction and Practice
of
the Courts
of
the United States (5th ed. 1949) Chs
I,
II,
VI, X.
187
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