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Thursday, 21 November 1974
Page: 2683


Senator GREENWOOD (Victoria) - This is a very difficult matter. I want to indicate at the outset that I am opposed to the concept of a Family Court of Australia. I will oppose any insertion in the Bill relating to a Family Court of Australia and that would mean I object to this heading. I equally oppose the provisions. Naturally, if the concept is accepted by the Committee the issue becomes whether or not the provisions to give effect to the Family Court are provisions which are appropriate. I want to say a number of things about this matter. Perhaps the appropriate place to speak on this issue of the Family Court is when we are dealing with this particular question. I do not know whether the Attorney-General (Senator Murphy) has any other views as to where the debate on the issue might properly take place.


Senator Murphy - This is fair enough. I agree with that course.


Senator GREENWOOD - I thank the Attorney-General. This is one area where there is a great deal of confusion, inconsistency and duplication appearing in what is contained in the Bill, what is contemplated by amendments suggested by those people who have indicated their support for this concept, and in the way in which the proposed legislation would operate. There is a great deal of confusion as to what will be the really operative provisions. When the Bill was originally introduced- the August Bill- the jurisdiction which was to be exercised was to be vested either in the State supreme courts or in the Superior Court of Australia. The Senate Standing Committee on Constitutional and Legal Affairs recommended that there should be a Family Court of Australia which was to be a superior court of record, and that the jurisdiction ought to be vested in it. As I understand it the Attorney-General has accepted the Committee's recommendation and has sought to give effect to it by the provisions we are now considering.


Senator Missen - Only partly.


Senator GREENWOOD - I accept that what Senator Missen says is correct. I do not know because I have not clearly checked out what the Attorney-General has done with regard to the Committee's suggestions. I then notice that 3 members of that Committee who have subscribed to the concept of the Commonwealth Family Court also are putting up amendments which will facilitate the creation by the States, in co-operation with the Commonwealth, of State family courts. As I understand the situation, there also is provision under their amendments whereby the jurisdiction may be vested in those State family courts. I understand that their view is that the Family Court will exist alongside the State family courts.


Senator Everett - They may exist, if agreements are reached.


Senator GREENWOOD -They may exist. Taking up Senator Everett's point, if agreements are not reached between the Commonwealth and the States, obviously there will not be State family courts but there will be a Commonwealth Family Court. Of course, agreement with the States depends not only on the States being willing but also on the Commonwealth being willing. My fear is that there will not be State Family Courts under this concept because this Commonwealth Government would not be interested in establishing State Family Courts. I would have thought that was a retrograde step and not as efficacious as State Family Courts would be, constitutionally and practically, in giving effect to the purposes of the Committee's report.

I referred yesterday to some aspects of the Committee's report which I felt indicated that there was, if not a misconception, a view which I did not think was constitutionally sound and that was the view that in some way you may have judges of a Family Court constituted by the Commonwealth who were not appointed for life. I am endeavouring, unsuccessfully at the moment, to find the particular reference, but the statement which was referred to was that in general judges of a Commonwealth court are appointed for life. I said then, and I think it is indisputable, that judges of a Commonwealth court, be it a Superior Court, be it the High Court, be it the Industrial Court or be it a Family Court, are appointed for life.


Senator Missen - Not Territory courts.


Senator GREENWOOD -Certainly not Territory courts. We are not dealing here with a Territory court; we are dealing with a Federal court of record according to the Committee 's recommendation. That means that there will be judges who have been inelegantly described as judges with a geriatric potential. The idea of geriatric judges being judges of a Family Court I think is totally inconsistent with the objectives which are sought in this legislation.


Senator Durack - Are there any State Supreme Courts which do not have age limits now?


Senator GREENWOOD - I cannot be positive but my strong impression is that every one of the States now has a provision for a retiring age for judges. As I remember it, most of the States have a retiring age of 70 but my own State of Victoria has a retiring age of 72.


Senator Everett - Is a judge geriatric at 70?


Senator GREENWOOD - Well, is a politician too old at 65?


Senator Everett - Mr Wentworthsays no.


Senator GREENWOOD - I am interested that Senator Everett posed the question because it is obviously not capable of a definitive answer. Some judges may well have exhausted themselves and their ability to do an efficient job of work at that age; others may not have exhausted themselves. My experience is that it is a sensible thing to have a retiring age because, whilst we may lose some judges who are still very active and able at a particular age at which they have to retire, they may thereafter, as demonstrated by conduct, if they cease to be on the bench go downhill. I am not going to respond to attractive suggestions put by way of interjection by Senator Devitt but if Senator Devitt wants to ask me afterwards about them we can always have a private discussion, not only about judges but about politicians.

The CHAIRMAN (Senator WebsterOrder! Is the Committee discussing the establishment of a Family Court or is it widening that discussion much further than I would have anticipated?


Senator GREENWOOD - We are discussing the Family Court but part of the problems which one can get involved in when one discusses this concept of a Family Court is the ability of the equipment of the judges who comprise the court, because there is a fear to which expression is given in the report about the age of judges and how desirable it is to avoid that situation developing. Yet I think that to establish a Family Court is to create that situation and whilst various other means by other legislation may provide inducements by which judges might be persuaded not to continue their judicial role beyond a certain age, there is no guarantee whatever that judges will accept such inducements. I would have thought that the experience we have in Australia at present is that in federal courts judges find satisfaction in continuing their judicial role beyond the retiring age of State judges. We have a number of judges who, I think with general acceptance, perform their duties even though they are in their late seventies and some are in their eighties, but this is a concept which in the Family Court area is not desired.


Senator Everett - But what about an amendment to the Constitution supported by both parties?


Senator GREENWOOD - I think that Senator Everett knows my general view on this because I have expressed it. It would be a most desirable concept and I would certainly support it.


Senator Durack - Is this after you have appointed the judges?


Senator Everett - No. At the next election we could put an amendment to the Constitution. You will support it and it will go through like wildfire and we will have no problem.


Senator GREENWOOD - I am attracted to what Senator Everett says but I am not sufficiently persuaded to feel that I can drop my objections to this clause because of that proposition.


Senator Durack - After the appointment of a judge can you cut back his term from life to 70 years of age?


Senator GREENWOOD - If the people wish to I am sure that they could. That is one aspect of this consideration. A second aspect which I think is important is that a Commonwealth Family Court would in essence be another name for a Commonwealth Superior Court with all the arguments against a Superior Court being able to be argued against a Family Court. Such a court would require additional judges, additional staff forjudges and the concomitant expense. It would require extra court buildings and extra accommodation right around the countryside and in capital cities. It would require a separate type of Family Court circuit which would provide services as readily available to people in country areas as would be provided by existing Supreme Court circuits. Whilst I am sure that, if the expenditure of money and the recruitment of judges and staff were unlimited, with that objective in mind those services could be provided, I do not think anyone would hesitate to claim that it would be an immensely expensive and uneconomic exercise. Australia is not the sort of country in which we can have this duality of court systems. We ought to have one court system and in that one court system have judges, even though they operate in divisions of that one court system, who are able to carry through the various specialist functions which may be ascribed to them.

Progress reported.







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