The Australian Judicial System: The Proposed New Federal Superior Court
| Author | Sir Garfield Barwick |
| DOI | 10.1177/0067205X6400100101 |
| Published date | 01 March 1964 |
| Date | 01 March 1964 |
| Subject Matter | Article |
THE AUSTRALIAN JUDICIAL SYSTEM:
THE PROPOSED NEW FEDERAL
SUPERIOR COURT
By
THE
HONOURABLE
SIR
GARFIELD
BARWICK*
Sir Garfield Barwick prepared this article some considerable
time ago.
It
was in the hands
of
the publishers well before
Sir Owen Dixon's retirement as Chief Justice
of
the High
Court. The Review, including the article, was in course
of
printing when Sir Garfield's appointment as Chief
Justice was announced on
23
April,
1964.
At the Thirteenth Australian Legal Convention,1during the dis-
cussion
of
apaper by
Mr
M. H. Byers Q.C. and
Mr
P.
B.
Toose Q.C.
on
,The Necessity for aNew Federal
Court',
the Commonwealth Solicitor-
General announced on my behalf that the Cabinet had authorised me
to
design anew federal superior court. Since then Ihave been engaged
with my Department in systematic work on the project.
By
the time this
Review is in circulation, however, Ishall have handed over the portfolio
of
Attorney-General to my successor,
Mr
B.
M. Snedden. The respons-
ibility
of
submitting definitive proposals to Cabinet and
of
drafting and
submitting aBill to Parliament will therefore be his. Obviously, this
circumstance must largely affect, and indeed control, the content
of
the
present paper. Ihope to write nothing which will in any way prejudge the
matters which he will have to decide or foreclose his complete freedom
of
decision. Thus in matters
of
opinion Iam to be understood as expres-
sing merely personal views and not the views
of
the Attorney-General,
still less
of
the Australian Government. Indeed, Ishall for the most
part be concerned to discuss the problems that arise rather than to recom-
mend particular solutions to them.
The subject
of
addition to the existing federal structure
of
Courts has
itself for some time been actively discussed by the Law Council
of
Aus-
tralia and its constituent bodies. This has been asignal public service.
The subject is highly technical, and it is healthy when lawyers them-
selves canvas
so
seriously the questions involved in proposed changes in
the judicial structure. But it must be confessed that discussion by the
profession has so far by no means solved the problems involved. A
general consensus there, that anew federal court,
if
not actually neces-
sary, would
at
least have real utility. But many
of
those who share this
conclusion reach it for different, and to some extent conflicting, reasons,
which lead to flatly divergent views as to the jurisdiction that the new
court should exercise, and therefore as to its optimum
size
and the
nature
of
its organisation.
*Q.C., M.P., Minister for External Affairs
of
the Commonwealth
of
Australia.
1Hobart, January
1963.
2Federal
Law
Review [VOLUME 1
In
the valuable paper presented by
Mr
Byers and
Mr
Toose
at
the
Hobart Convention, the need for anew federal court was rested primarily
on
the need to relieve the growing congestion
of
the lists in State courts,
at
any rate in the superior courts
of
the State, by removing into afederal
court the federal jurisdiction with which the State courts are now invested.
The learned authors submitted in effect that the State courts were never
intended,
at
the time
of
federation, to carry anything but an initial and
light burden
of
federal jurisdiction during the early years
of
the Com-
monwealth, and that the time has now come to carry out what they
regard as the original bargain and to take an important step towards the
creation
of
acomplete system
of
national courts, parallel with those
of
the States, as in the United States
of
America.2
For
myself, Iwould approach the matter quite differently. My own
basic objective in proposing anew federal superior court was to free the
High Court
of
Australia, as
of
this time but particularly for the future,
for the discharge
of
its fundamental duties as interpreter
of
the Constitu-
tion and as the national court
of
appeal untrammelled by some appellate
and much original jursidiction with which
it
need not be concerned.
The federal Parliament's power, by virtue
of
section
77
(iii)
of
the Con-
stitution, to invest State courts with federal jurisdiction, as an alternative
to conferring it on the High Court or creating new federal courts to
exercise it, was an original Australian contribution to
federation-an
'autochthonous expedient', as it has been called by the High Court.3
No
doubt
the'
expedient' owed its origin
at
least in part to considera-
tions
of
economy-a
desire to avoid imposing on apopulation
of
only
some three millions, in acountry roughly the same size as continental
United States, the burden
of
establishing acomplete system
of
national
courts to interpret and apply federal lawinits entirety. But
the'
expedient'
was not, in my view, in any sense temporary. Iwould not myself regard
the constitutional arrangements as in any sense subject to any implied
promise that section
77
(iii) would be treated as atransitional provision,
to operate only for abriefinitial period. On the contrary, Iwould regard
the investiture
of
State courts with federal jurisdiction as apotentially
permanent, and, as such, desirable feature
of
the Australian judicial
system.
It
is
but an illustration, as Quick and Garran
say,4
of
the national,
as contrasted with the strictly and technically federal, features
of
the
Australian judicial system.
Ido not therefore regard the fact that cases arising under Common-
wealth law now bulk sizeably in the lists
of
State courts as in itself requir-
ing,
or
even as justifying, areversal
of
the investitute
of
State courts with
federal jurisdiction. Judicial work requires no fewer judges, and no
2(1963) 36 Australian Law Journal 308.
3Boilermaker's Case (1956) 94
C.L.R.
254, 268.
4The Annotated Constitution
of
the Australian Commonwealth (1901) 804.
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