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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
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Legislative
Council |
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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
Parliament Index |
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The Hon. IAN GILFILLAN: The Democrats support the second reading of the Bill. We recognise the serious nature of last month's High Court decision, which has effectively ended the scheme of cross vesting State jurisdiction in Australian courts. The decision is a matter of regret. Whatever the correct interpretation of the Australian Constitution, it is readily apparent that the cross vesting scheme was intended to deliver and did deliver more affordable access to justice. It did this by eliminating the need for litigants to have State and Federal matters dealt with in separate courts. If this is unconstitutional, as the High Court has now held, the Constitution needs to be changed. I for one would welcome a referendum to remove this anomaly. However, in the short term we must look for a solution to a problem which has in effect invalidated all decisions of the Federal Court in matters of State jurisdiction made under the cross vesting scheme.
It has also left cases currently pending in a state of confusion. I hope the Federal Court (State Jurisdiction) Bill is the appropriate mechanism to address the situation. In part 2 the Bill seeks to create rights and obligations based in effect upon what was the purported exercise of State powers by Federal Courts. The exercise of such powers has now been held to be invalid; therefore, I fear that these clauses are doomed to failure if they are subjected to a High Court challenge and could be judged to be unconstitutional. However, I certainly do not have an alternative suggestion, and I welcome the Attorney's assurance that the Standing Committee of Attorneys-General is seeking a long-term alternative to these arrangements. Despite my doubts, the Democrats are prepared to support the Bill on the basis that it is worth a try; the consequences of doing nothing would be much worse. If nothing else, this episode gives added impetus to the Australian Democrats' policy of constitutional reform to be wider than merely replacing our Head of State.In Committee.
Clause 1.
The Hon. IAN GILFILLAN: Is the Attorney in a position to say what, if any, extra cost as a result of this determination will fall on the South Australian Supreme Court system? Maybe he can expand to indicate whether, if there is an estimate, it will be accommodated in addition to the budget.
The Hon. K.T. GRIFFIN: It is not clear what additional costs to the States will flow from the decision. It has been difficult to get a handle on how many cases are involved. A number of corporations law matters had been initiated in the Supreme Court well before the High Court decision because practitioners anticipated that there would be a problem and they did not want to have to revisit their cases in the Federal Court if they could avoid that problem by initiating action in the State Supreme Court. Undoubtedly, there will be some additional workload. The matter has been discussed with the Chief Justice, but there is no clear indication as to what the extra workload will be. Once this Bill is passed we may get a better understanding of how much additional work there is.
It does not appear to be so significant at the moment that we have to become overly concerned about additional delays that might be caused as a result of the additional costs that might be incurred. I can give no definitive amount in relation to the work that might come across from the Federal Court.
The Hon. IAN GILFILLAN: I thank the Attorney. Maybe the Attorney could indicate whether, on finding that there was clearly an indication of an increased cost and it was approximately quantified, the Supreme Court or the court structure generally would be expected to take it out of its existing budget or the Government would cover that extra cost. The Hon. K.T. GRIFFIN: I cannot give a clear answer about that, because we do not know how much work is involved, but I indicate that I meet on a fairly regular basis with the Chief Justice—on a monthly basis and more frequently if necessary—and our respective officers are very much attuned to the need to monitor this. It is impossible to say what will or will not be the case. If it is just a small workload, no supplementation might be requested. If it is a large volume of cases which ultimately have the effect of causing significant extensions to the time it takes for matters to get onto trial, that is another matter and we will have to look at it at the time. I will not pre-empt it by saying `Yes' or `No' to the question raised by the honourable member. I simply want to indicate that we are conscious of the consequences of a significant number of matters coming across to the State Supreme Court and we will look carefully at whether or not there is any significant disadvantage to the State system as a result of it. Clause passed. Clauses 2 to 13 passed. Clause 14. The Hon. K.T. GRIFFIN: I move: Page 7, line 29—Leave out `Appeal Division of that Court' and insert `Full Court of the Family Court of Australia'. This amendment is of a minor drafting nature. The model Bill prepared through the Standing Committee of Attorneys-General originally referred throughout to the Appeal Division of the Family Court of Australia. However, the Family Court advised that the proper title was the Full Court of the Family Court of Australia. The necessary amendments were made to the rest of the Bill. However, the reference in clause 14 was not changed. This amendment replaces the reference to the Appeal Division with a reference to the Full Court of the Family Court of Australia. Amendment carried; clause as amended passed. Clause 15, schedule and title passed. Bill read a third time and passed.