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Thursday, 25 October 1973
Page: 1476


Senator DURACK (Western Australia) - I am grateful that the Committee has at last received some reasoned argument and detail as to why it is necessary to increase the number of judges of this court. 1 am, as I have said, pleased that Senator James McClelland has provided the Committee with some such argument. The arguments that I have heard hitherto have indicated a confusion as to which court we are talking about. I think this was classically illustrated by the remarks of Senator Milliner and, indeed, to some extent the arguments put forward by Senator Little in favour of his amendment. These arguments would indicate that these honourable senators were looking on this court as being the court concerned with resolving, by conciliation or arbitration, industrial disputes. Of course, it is clear enough that, if necessary, hours and weeks of time must be taken up by negotiations in that type of judicial work. But this court, now to be known as the

Australian Industrial Court, is a court which operates in purely a judicial manner in this sphere of industrial law.

It is notorious that a very light burden of work has been imposed upon the judges of this court who are engaged solely, as I have said, in the judicial administration of this Act. Certainly the considerations which apply to them are different from those which Senator Milliner and Senator Little believe apply to the conciliation and arbitration process. I am glad to see that Senator Milliner has now returned to the chamber because I am having a shot at him. Although Senator Milliner thought that Senator Greenwood was ignorant of the whole judicial process, I regret to say that in fact it was Senator Milliner who was ignorant as to which court we were talking about.

My concern with this clause as it is printed is one of principle. Really the principle with which I am concerned is the same as that expressed by Senator Wright. I believe that the clause is wrong in principle, and certainly I would always oppose it. I am glad that the Opposition has decided to oppose the amending clause which would have allowed for no limit on the number of judges who may be appointed as members of this court.


Senator Devitt - Do you feel that the Government is stacking the court?


Senator DURACK - I am not saying it is stacking the court. I would not suggest for one minute that the Government which the honourable senator supports would do that. It is simply wrong in principle to have a court which may be stacked by any government. Therefore we as members of Parliament should ensure that such a power is never given to a government. Therefore I believe it is correct for the Opposition to bring forward this amendment. There may be some arguments as to why the membership of the court needs to be increased from 7 judges. I think Senator James McClelland has given some sound reasons for this. I am not happy with the situation as it exists. I am not happy about the fact that out of a court of 7 judges at least three of them are fully engaged on other duties. If one judge is really so incapable of pulling his weight on the court, as Senator James McClelland said, it seems that consideration should be given to his retirement.

I am rather disturbed, in fact, by the reasons that Senator James McClelland has advanced for the increase in the membership of the court. The fact of the matter is that there is a practical problem, namely, that there can be only 3 judges available to exercise this jurisdiction. Although they are faced with a fairly light work burden, it is nothing like that contemplated by some honourable senators who have spoken. There may well be some case for an increase in the number of judges. In those circumstances it would seem that Senator Little's amendment, which would meet my objection in principle, is one which might well find general favour with the Committee.







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