Wednesday, 9 November 2016
Questions without Notice: Additional Answers
High Court of Australia
On Monday, 12 September Senator Culleton asked me a question concerning section 33 of the High Court of Australia Act and the High Court Rules 2004. I undertook to look into the matter. I made inquiries of the Principal Registrar of the High Court of Australia, who has provided a response. I table that response along with the Hansard of Senator Culleton's question. I seek leave to incorporate them in Hansard.
The documents read as follows—
High Court of Australia
Honourable senators interjecting—
The PRESIDENT: Order on both sides. Senator Culleton, start again.
Senator CULLETON: Thank you, Mr President. One question for Senator the Hon. George Brandis QC Attorney-General and Leader of the Government in the Senate. Since Senate school, it has come to my attention that there is a discrepancy between section 33 of the High Court Act 1979—which states that all process shall, which means must, be issued in the name of the Queen—and the High Court Rules 2004. If this appears to be the case, why has the High Court felt free to defy the parliament for 12 years?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:25): Thank you, Senator Culleton. Congratulations on your inaugural question in this chamber. I must confess, Senator Culleton, I was not expecting to be asked about the High Court rules, an object of some fascination to me, I might say. I will have a look at section 33 of the High Court Act and whether or not it is apparent that there is an inconsistency, as you say, between section 33 of the act and the rules made under the High Court Act.
As you would be aware, Senator Culleton, the rules of the court are procedural rules. They attach forms, usually, that are used in the process of the court and the various procedural steps in proceedings before the court. I must confess it has never been drawn to my attention before that there may be an issue about the consistency between the High Court rules and section 33 of the act, but, as I say, I will look at the matter.
An exposure draft of the High Court Rules 2004 was circulated in April 2004. The exposure draft was the subject of detailed comments by the Law Council of Australia, the Australian Bar Association and the Special Committee of Solicitors-General. After considering those comments, the Justices made the High Court Rules 2004 on 5 October 2004. They were tabled in the Parliament on 16 November 2004 and came into effect on 1 January 2005.
No issue was raised in the process of drafting or consultation concerning the consistency of the Rules with s 33 of the High Court of Australia Act 1979 (Cth).
The Rules Committee of the High Court considered that issue on 12 October 2016. The Committee proposes a number of amendments to the Rules to address the issue. The proposed amendments will be drafted by the Office of Parliamentary Counsel and will be the subject of consultation with professional bodies before being finalised by the Court.