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Thursday, 21 November 1974
Page: 2651


Senator MURPHY (New South WalesAttorneyGeneral) - I know that the Committee will not want a dissertation on the law. The point raised by Senator Greenwood is a significant point and it has been given careful consideration. I remind honourable senators that there has been much discussion on this topic over the years. A very valuable work on this precise subject- the constitutional power of the Commonwealth to regulate family relations- by Professor Sackville, who is known to all honourable senators, and by Professor Howard, who is the General Counsel to the Attorney-General, is reported in the 1974 Federal Law Review at page 30. It is referred to in the text of 'Family Law in Australia' by Finlay, Bishop and Johnson. As honourable senators would expect, very much attention has been paid and most serious consideration has been given to what has been said by the court, including what was said by Justice Menzies in his dissenting judgment in the case to which Senator Greenwood referred.

One thing is clear: lt is not suggested that this approach ought not to be taken if it can constitutionally be taken. I think that there is virtually a consensus throughout the country that if the matters can be attended to in this way under the Constitution they should be attended to. As I understand it, no argument is raised against the desirability of the definition, if that can be done constitutionally. All I can say to the Committee, without going through all the bother of reading out arguments and so forth, is that of course the utmost attention has been paid and the utmost care has been given to this aspect of the subject, taking into account all that has been said as to what would need to be done if there happened to be some error. Senator Greenwood pointed out that in a previous enactment an error was made, according to the High Court. Action was taken to correct it. But here is a move which is clearly in the interests of the community. I would ask the Senate not to alter the definition because to do so would really take away the features of this legislation which I think have been generally applauded as very great advances and if they are constitutional they are eminently in the public interest. I would ask the Senate not to accept the amendment.







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