“Judicial Independence” is a subtle concept. In the Australian constitutional context, it is often spoken of as a systemic quality. For example it has been said that it is “fundamental to the common law system of adversarial trial” that it be “conducted by an independent and impartial tribunal”, and that this principle is “fundamental to the Australian judicial system”.

In relation to statutory construction, our position might be contrasted with that of the State and Territory Supreme Courts. The difference is only one of degree for, in modern times, State Parliaments have displayed a like penchant to their Federal counterpart. But the position remains, albeit much eroded by the loss of subjects of jurisdiction to Commonwealth courts and tribunals and by statutory intrusions, that these are courts of general jurisdiction.

When we study Roman as well as Anglo-American legal history, we find it to be true as a general proposition that the most far-reaching changes and fundamental innovation in the structure and fabric of the law were brought about, not by the actions of the legal profession, but by the efforts and acts of men or groups of men outside its ranks.

An Act to provide that the rules of equity shall prevail over the rules of the common law in cases of conflict or variance; to extend the defences available in inferior courts; to repeal certain sections of the District Courts Act 1912 and the Supreme Court Act 1970; and for purposes connected therewith.

The Guidelines are designed to assist departmental and agency officials, statutory office holders and the staff of statutory authorities in their dealings with the parliament. The term ‘official’ is used throughout the Guidelines; it includes all persons employed by the Commonwealth who are undertaking duties within a Commonwealth department or agency (whether employed under the Public Service Act 1999 or other legislation) and those in government business enterprises, corporations and companies.

The term “privilege”, in relation to parliamentary privilege, refers to an immunity from the ordinary law which is recognised by the law as a right of the Houses and their members. Privilege in this restricted and special sense is often confused with privilege in the colloquial sense of a special benefit or special arrangement which gives some advantage to either House or its members. Privileges in the colloquial sense, however useful or well-established they might be, have nothing to do with immunities under the law. The word “immunity” is best used in relation to privilege in the sense of immunity under the law, and is used here.

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