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Tuesday, 26 November 1974
Page: 2779


Senator CHANEY (Western Australia) - Mr Chairman,I am flattered to be mistaken for Senator Durack. I am glad that this time the Attorney-General (Senator Murphy) spoke between me and Senator Sir Kenneth Anderson because the last time that Senator Sir Kenneth Anderson asked for clarification I spoke and he then announced himself more confused than ever. 1 trust that the intervention of the Attorney-General will help me to get my point across. I think there is common ground in this debate to the extent that it is generally agreed we ought to have a family court which will administer the law in this area. I think it is also common ground that if that family court is to succeed it will wind up exercising not only Commonwealth jurisdiction but also some areas of State jurisdiction. It is in that context that we have to look at the amendment moved by Senator Missen and supported by me. If the States and the Commonwealth can come together on this concept of a family court I think in the future it will be far easier for the States to ensure that this one family court in the States is given all the appropriate jurisdiction, both State and Federal.

Again it is in that context that I do not have any difficulty with the points that seem to worry Senator Greenwood so much. The idea of an appointment by the States which requires the approval of the Attorney-General, while it might be without precedent, is really not so difficult to comprehend when looked at in that context. The situation is that the appointees will be exercising jurisdiction in fields which will be the concern of both the State and Commonwealth, so why should not the 2 jurisdictions get together and agree on appointees being people who are appropriate, assuming that they can agree on the common concept of a family court. In fairness to those supporting this amendment I point out to the Attorney-General that he is in the situation where if a State will not co-operate with him and go along with the idea of a family court within these guidelines, he will be free to go ahead and develop his Commonwealth court. The point is that there is a sanction on the States to require them to co-operate. In turn there is some fetter on the Attorney-General in that he does not have the unfettered power to create an unlimited number of judges to the court. So I think we have a situation where both the Commonwealth and the States will be forced to come together and to co-operate in the production of the Court. If they do not Senator Murphy will have his way, his Court will be created and it will be a totally Commonwealth court.

With respect to the retirement of judges at 65 years of age again I think it is common ground that we do not want judges on this particular Court who are geriatric. We take that view because it is the rare man who can get into real old age and still maintain the sort of understanding that we want to permeate this Court. It is no use pointing to exceptions like Senator Wood, who might say that they are over the retiring age being proposed, because the exception does not prove the rule. I would say, for the reasons I have put forward, that the concept we are putting forward is quite sound. Although I can sympathise again with the call by Senator Greenwood for something more clear cut, I say to him that it is one thing to have a nice clear cut piece of legislation when it is being put forward as a Government measure which can be totally compatible with a government's philosophy or approach to the matter, but this happens to be a non-Party Bill.- There happen to be a variety of views around this chamber as to the way the thing should operate. The fact of the matter is that I hope we will wind up with something which is neither exactly as Senator Murphy would have wished it nor exactly as Senator Greenwood would have wished it but perhaps something which represents a reasonable middle ground that all can support. The fact is that both the States and the Commonwealth will be under sanctions to produce the sort of court that we all agree is wanted.

Senator Buttonquoted paragraph 38 of the Senate Standing Committee's report which he and I had some very small part in producing. It was pointed out to him, by way of interjection, that he had failed to draw attention to paragraph

37.   1 take a little of the time of the Senate to refer to that paragraph. It states:

The Committee has not conceived its duty to be to solve this problem -

The problem of establishing a family court- which is however a matter of essential importance to the Australian Government. However one possible solution to this problem is along the following lines, namely that the Australian Government immediately approach the various State Governments to seek their co-operation as follows -

There follows a series of criteria which in the broad are along the lines which are put forward in Senator Missen 's amendment. Senator Button had the temerity to chide Senator Missen and those supporting this amendment with some sort of doctrinal or doctrinaire approach to this matter. He suggested that perhaps we were motivated by some romantic attachment to the concept of federalism. 1 have made my position clear on this matter. I have a romantic attachment to the concept of federalism, but I suggest that those members of the Committee who felt able to put this forward as a possible solution to the problem and are now recanting from it are indicating perhaps they are activated by some doctrinal romantic attachment to the concept of centralism. Quite frankly 1 think Senator Button's contribution to the debate was, unusually, of no assistance to honourable senators who were genuinely trying to find some solution to the problem.

Senator Everett'scontribution was to damn the proposal as futile, wasteful and confusing. He damned it outright and not with feint praise as did Senator Greenwood. Again I ask the Senate to consider Senator Everett's comments in the light of the facts as to what we have already approved in this Bill. We have not yet approved a vast Family Court of Australia which will sit as some big brother up against little State courts which will have some lower status. What we have approved is the appointment of 6 judges. I hope that, if Senator Missen 's amendment is accepted, if the States approach this matter in a spirit of co-operation and if the AttorneyGeneral approaches this matter in a spirit of cooperation, 6 judges might be as many as would be needed. In fact we would then have a system of family courts around Australia which would be State courts and the Family Court which we have approved under clause 17 of the Bill would simply be required as an appellate court, as a court perhaps to fill gaps where the States were not able to provide facilities. The whole idea of having a wasteful twin hierarchy of courts is a figment of Senator Everett's imagination as the legislation stands at present. All that we are committed to is the appointment of quite a small Federal court. If Senator Missen 's amendment is accepted we can have within the States the creation of family courts which fit the pattern the Committee seems to be agreed is required but which exercise virtually the whole of the jurisdiction within each of the States subject only to the appellate jurisdiction of the Family Court "of Australia.

As far as the proposition that was put forward by the Attorney-General is concerned, that the State judges would not be part of the team, I remind him of the support that he received from some of the proponents of this amendment for the control of the regulations being retained by him. I suggest that, with his control over the appointment of judges, there is ample power for him within the provision that we are putting forward to ensure that the States go into this matter in good faith to create the sort of team that he wants. I am sure that all members of the Committee would agree that the Family Court of South Australia is an example of the sort of court that we are anxious to see established around Australia. It may need its jurisdictions extended, varied and so on in some areas, but the approach is basically the sort of approach about which we have all been talking. I suggest that those people who say we cannot achieve through State courts the objective that we have set ourselves are allowing themselves to be befuddled by a doctrinaire approach to the matter. I suggest that, in an area where we do want the States ' cooperation to get the remaining areas of jurisdiction vested in the Family Court, the sort of proposal which is put forward by Senator Missen deserves support.

I do not support the idea that this is a clumsy and confusing idea. If in fact the State courts are established and are able to handle the bulk of the work there need be no confusion in the minds of members of the public as to where they go. If there are shared premises and the Federal court is performing fairly limited functions there need be no confusion in the minds of either the public or the practitioners. I say this is a reasonable solution in an area where some compromise is required. We should not compromise the basic concept of the Family Court. I think the good faith of Senator Missen and those of us who have supported this amendment is demonstrated by our support for the various amendments to clause 17 that were moved by the AttorneyGeneral. We have put it within his power to get the court he wants if the States will not cooperate. We are asking him to give the States the opportunity to co-operate and to provide the court with a basis which I am sure will be more totally satisfactory.







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