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National judiciary sparks debate

The federal opposition has drawn a line in the sand on the idea of a national judiciary, saying the idea if "profoundly antifederal" that would be dominated by the Commonwealth.

user iconKate Gibbs 03 February 2010 The Bar
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THE federal opposition has drawn a line in the sand on the idea of a national judiciary, saying the idea if "profoundly antifederal" that would be dominated by the Commonwealth. 

In a Senate debate yesterday, George Brandis, Queensland Shadow Attorney General, said that while he welcomed the idea of greater harmonisation and further fostering of judicial collegiality through inter-court exchanges, a complete national harmonisation was not supported by the Opposition. 


Brandis' comments came after Chief Justice of New South Wales, James Spigelman, this week called for the creation of a nationally integrated judiciary. 

Brandis said the parliament should be very slow to embrace calls for an integrated national judiciary. 

"The Australian judicial system reflects the federal nature of our polity. The fact that there are state and territory supreme courts with particular jurisdictions, which are quite separate from although often overlapping with the jurisdiction of the federal courts under chapter 3 of the Constitution, is an important feature of our system. 

"May I say on behalf of the opposition, and in this we share the view of the committee, that I would be very slow and sorry to see the autonomy of state supreme courts and territory supreme courts eroded by the integration of those courts into a uniform national judiciary, which would inevitably be dominated by the federal judicial system, by Commonwealth courts."

However, the Legal and Constitutional Affairs References Committee, in its newly released report Australia's judicial system and the role of judges, was careful to distinguish between a national judicial system and a national court system. 

The Committee noted that existing legislation limits the scope to implement a national judiciary because State and Territory judges are prohibited by The Constitution from acting in a federal capacity. 

It notes that the Federal Court has observed: "'There are many instances of Federal Court judges holding commissions as members of the Supreme Courts of the Territories and, occasionally, as acting judges of State courts', but that a reciprocal arrangement cannot happen under present constitutional arrangements."

As well, in July 2008 the Standing Committee of Attorneys General agreed to establish a working group to examine the feasibility of establishing a national judiciary. 

But the Committee said that support for the development of a national judicial framework is constrained by the likelihood of it facing significant challenges. "The Committee is cautious about what can be achieved through a national judiciary," it said. 

It said it was "not as pessimistic as the Law Council" on the subject, but agrees with the Law Council that "the practical issues of a judicial exchange scheme will need to be very carefully considered to ensure that any system is effective and efficient". 

"While there are potential benefits to litigants and to the administration of justice," it said, as the Law Council notes, "the dangers of weakening the system and undermining confidence in the judiciary are real". 

But, the Committee said it supported the Attorney General's Department and SCAG consideration of progressing arrangements for improved judicial exchange and, eventually, the establishment of a national judiciary. 

In addition to the constitutional reform needed for state judges to work in the federal jurisdiction, there are other complications. As the International Commission of Jurists - Victoria said in its submission to the Committee: "Such a step would not be straightforward. 

"The history of each of the Australian States has resulted in the development of six or more similar but separate systems. In some cases those systems have been tailored to cope with the particular needs or requirements of particular jurisdictions. Ultimately, however, the ICJ supports a national judicial system and supports a trend in that direction."

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