JUDICIARY.
No. 5 of 1937.
An Act to amend the Judiciary Act 1903–1934 and for other purposes.
[Assented to 3rd July, 1937.]
BE it enacted by the King’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—
Short title and citation.
1.—(1.) This Act may be cited as the Judiciary Act 1937.
(2.) The Judiciary Act 1903–1934, as amended by this Act, may be cited as the Judiciary Act 1903–1937.
Rules of Court.
2. Section eighty-six of the Judiciary Act 1903–1934 is amended—
(a) by omitting the words “not inconsistent with this Act for carrying this Act into effect” and inserting in their stead the words “necessary or convenient to be made for carrying into effect the provisions of this Act or so much of the provisions of any other Act as confers jurisdiction on the High Court or relates to the practice or procedure of the High Court”; and
(b) by inserting after paragraph (b) the following paragraph:—
“(ba) regulating the means by which particular facts may be proved and the mode in which evidence thereof may be given;”.
3. Section eighty-seven of the Judiciary Act 1903–1934 is repealed and the following section inserted in its stead:—
Tabling of Rules of Court.
“87.—(1.) All Rules of Court made in pursuance of the last preceding section shall—
(a) be notified in the Gazette;
(b) take effect from the date of notification or from a later date specified in the Rules; and
(c) be laid before each House of the Parliament within fifteen sitting days of that House after the making of those Rules.
(2.) If either House of the Parliament passes a resolution, of which notice has been given within fifteen sitting days after the Rules have been laid before the House, disallowing any Rule, that Rule shall thereupon cease to have effect.”.
Amendment of certain Acts.
4. The Acts specified in the first column of the Schedule to this Act are amended as respectively specified in the second column of that Schedule and, as so amended, may be cited in the manner respectively specified in the third column of that Schedule.
Saving.
5. All Rules of Court made by the Justices of the High Court, or a majority of them, under the powers conferred by any provision repealed by this Act, which were in force immediately prior to the commencement of this Act, shall continue in force as if this Act had not been passed and shall for all purposes, including the purpose of amendment or annulment, be deemed to be Rules of Court made under the powers conferred by section eighty-six of the Judiciary Act 1903–1934 as amended by this Act.
THE SCHEDULE. Section 4.
Act. | Extent of amendment. | Manner of citation as amended. |
Australian Industries Preservation Act 1906–1930. | Section 25—Repeal .... | Australian Industries Preservation Act 1906–1937. |
Crimes Act 1914–1932. | Section 30aa—Omit sub-section (10.). | Crimes Act 1914–1937. |
High Court Procedure Act 1903–1933. | Section 1—Omit the words “Rules of Court, ss. 32–34.”. | High Court Procedure Act 1903–1937. |
| Section 16—Repeal. Omit the words “Rules of Court” immediately preceding section 32. | |
| Sections 32, 33, 34 and The Schedule—Repeal. | |
Income Tax Assessment Acts 1936. | Section 203—Repeal. | Income Tax Assessment Act 1936–1937. |
Insurance Acts 1932. ....... | Section 25—Omit sub-section (2.). | Insurance Act 1932–1937. |
Land Tax Assessment Act 1910–1934. | Section 47—Repeal .... | Land Tax Assessment Act 1910–1937. |
War-time Profits Tax Assessment Act 1917–1918. | Section 31—Repeal .... | War-time Profits Tax Assessment Act 1917–1937. |
Overview
The Judiciary Act 1937 was enacted by the Commonwealth Parliament to amend the Judiciary Act 1903–1934 and address various gaps in the administration of justice, particularly concerning the practice and procedure of the High Court. The Act aimed to refine the rules governing the High Court's operation, ensuring that the rules are aligned with the legislative intent and are properly scrutinised by Parliament. It introduced changes to the manner in which evidence could be presented and regulated in court, and it also altered the procedure for tabling and disallowing rules of court. The policy objective was to enhance the efficiency and transparency of the judicial process by ensuring that court rules are effectively communicated and subject to parliamentary oversight.
Scope and Application
The Judiciary Act 1937 amends the Judiciary Act 1903–1934 to expand the scope of the High Court's rule-making powers to include the regulation of the means by which particular facts may be proved and the mode in which evidence thereof may be given. This Act applies to the High Court of Australia and its jurisdiction, and it is intended to provide more flexibility and comprehensiveness in the administration of justice. The Act applies nationally across the Commonwealth of Australia. The provisions of the Act apply to all rules of court made in pursuance of its provisions, which must be notified in the Gazette, take effect from the date of notification or a later specified date, and be laid before each House of the Parliament within fifteen sitting days. If either House of the Parliament passes a resolution disallowing any Rule within fifteen sitting days after the Rules have been laid before the House, that Rule shall cease to have effect. The Act also provides that all Rules of Court made by the Justices of the High Court, or a majority of them, under the powers conferred by any provision repealed by this Act, which were in force immediately prior to the commencement of this Act, shall continue in force as if this Act had not been passed. This ensures that the existing rules remain in effect until they are formally amended or repealed.
Key Provisions
The Judiciary Act 1937, as it amends the Judiciary Act 1903–1934, includes significant changes to the rules governing the High Court. Firstly, section 2 of the Act modifies section eighty-six of the previous Act, allowing for the creation of rules that are necessary or convenient for carrying out the provisions of the Act or other relevant legislation, and also regulating the methods of proving facts and presenting evidence. Section 87 replaces the old provision for tabling rules of court, stipulating that all rules must be notified in the Gazette, take effect from the date of notification or a later specified date, and be laid before each House of the Parliament within fifteen sitting days of their creation. If either House passes a resolution within fifteen sitting days disallowing any rule, it ceases to have effect.
The Judiciary Act 1937 also imposes specific obligations on the parties involved in the governance of the High Court. Under section 87(1)(c), it is mandatory for the rules to be laid before each House of Parliament within a strict timeframe, ensuring that there is parliamentary oversight over the rules' creation and effect. Additionally, any rules made by the Justices of the High Court prior to the commencement of this Act and in force at that time, are deemed to continue in force as if this Act had not been passed, as outlined in section 5.
The Act introduces specific consequences for non-compliance with its provisions. Under section 87(2), if either House of Parliament passes a resolution disallowing any rule, that rule ceases to have effect. This means that the legislative branch has a mechanism to check and potentially overturn rules made by the High Court, thereby maintaining a balance of power. Additionally, any rules that are not properly notified in the Gazette or tabled before Parliament within the stipulated timeframe risk being deemed invalid, as per the new rules outlined in section 87.