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Tuesday, 26 November 1974
Page: 2781


Senator MISSEN (Victoria) -I desire to say a few words in reply to some honourable senators who have spoken. Senator Chaney, I believe, has dealt very effectively with other honourable senators. Senator Everett made 5 main points. One was perfectly correct. It is true that State court judges will not sit on the full Federal court because they cannot be in a Federal and State court at the same time. Of his other 4 points, two were sheer pessimism and two were clearly wrong. He has in mind that the wages of the judges might be lower if they served on State courts and therefore they would not want to serve on such courts. That has already been dealt with. I suppose he would, logically and consistently, draw attention to the fact that under this Bill the Federal court itself will consist of senior judges and ordinary judges on different salaries. Perhaps he ought to suggest that they will have a different attitude. I do not think that we will find that this is so. Judges in different courts will have clearly a common responsibility and interest in these affairs. The Court will attract decent judges. I have sufficient faith in the people around the community to know that there are people of capacity to fill the positions.

Senator Everett's other point of pessimism was to suggest that legal aid would not be applicable equally to the State courts that are operating under this legislation. I have heard nothing from the Attorney-General (Senator Murphy) to suggest that. I think it is an unworthy suggestion. I think the Commonwealth recognises what its responsibilities are, and they are considerable in the provision of legal aid in matrimonial matters. I have no reason to think that there would be a differentiation between State and Federal courts in this regard or against the people who are litigants in State courts.

The first of the 2 matters that were clearly wrong was the suggestion that we would have 2 concurrent streams of appellate jurisdiction that there could be appeals in 2 different directions. What Senator Everett forgot when he mentioned that was that there is a provision in clause 71 of this Bill which relates to the appeal position. Under that clause appeals from the Supreme Court go to the full Family Court and the provisions of sub-clause 3 of my amendment make it clear that references in the various clauses, including clause 7 1, to the Supreme Court of the State are to be taken as references to the Family Court of the State. Consequently appeals will go from the new State Family Courts to the new full

Federal Family Court. So there is nothing whatsoever in that suggestion. That was a red herring of the worst degree.

His other suggestion that State Courts would not be able to exercise various jurisdictions that were federal likewise would not hold up an examination if in fact Federal jurisdiction were conferred on these State courts. I find it extraordinary that, having had so long in which to consider objections to this provision, he should come down with such a weak group of objections. After all, paragraph 37 of the report of the Standing Committee, which was not read, sets out the one possible solution put forward by the Committee of the way in which Federal and State jurisdictions could apply. Members of that Committee have spoken in the debate. It is true that the Liberal members of that Committee had the greater enthusiasm for this solution. There is no other solution proposed apart from one sole Federal court with judges remaining until they die. They would continue unless we can change the Constitution. This is all that can be suggested.


Senator Murphy - A proper pension scheme has worked in the United States.


Senator MISSEN -The Attorney-General has said that a proper pension scheme has been in operation. It is a scheme whereby federal judges may be induced to leave their posts and to take the pension. If they do not, they will be much worse off. It is my opinion that such a scheme would not succeed and that constitutionally you will not be able to deny the judges their life appointment by inducing them or forcing them to accept appointments by making their pension rights very bad if they do not accept retirement at 65 or 70 years of age. I hold no great confidence that that type of scheme will succeed in achieving the effect that the AttorneyGeneral has suggested.

I turn to Senator Greenwood who gave, he said, lukewarm support to our scheme. If it is lukewarm support I would hardly like to experience the cold water if he were to throw it around. I recall that Senator Greenwood asked me to consider, over dinner, various proposals. Of course we have considered these proposals for some months, and therefore there is no difficulty in giving an answer to them. He put the proposition that there is no provision to allow parties to go to the South Australian Family Court and to utilise it. Of course there is a proposal. The proposal- this is set out in paragraph 37 of the Standing Committee's report- is that it would be very easy for a State Court to be set up in South Australia because it has the existing mechanism.

But it will obviously require something in the way of legislation. The South Australian court it set up merely by administrative arrangements. There is no legislation creating that Family Court. It is obviously necessary, in the terms which we have put in this amendment, for the South Australian Court to be established by State legislation. What will make this easier is the fact that it is already existing as a very suitable and well operating body but it obviously ought to have State legislation behind it.I am surprised that Senator Greenwood thinks that it ought to be just utilised without that legislation being carried into effect.

Senator Greenwoodalso did not like the idea in this amendment, that the approval of the Australian Attorney-General should be sought for the appointment of State judges. He suggested that instead consultation would be all that would be necessary. We all know, do we not, that consultation means nothing? If you merely say that you have to consult the Attorney-General before you make the appointment then you can consult and do whatever you like.

Of course the real point to this is that the Commonwealth, in our view, will in the future pay the costs- we hope- in respect of all this legislation and the operation of the scheme and therefore it has the right to ensure that suitable judges are being appointed in line with the whole of the principles which our report and this Bill enshrine. Therefore I believe that approval is something which is satisfactory and should be expected. He said to us: 'Well, you should not require the States to force judges to retire at 65 years of age. The States should say whenever they wish them to retire'. There we see the very essence of a scheme solely involving State courts with judges retiring at different ages and without any uniformity. That is the very way in which one would lose the essential unity and purpose of this scheme. I put to the Senate that all those questions have been considered and none of them is relevant or necessitates any amendment to the proposal we have put up.

The Attorney-General has said that since 1901 we have contemplated federal legislation. We contemplated it but it took 58 years before it actually came into operation and then those in power dared not go as far as they would have liked. I suggest to him that the Commonwealth now can impose and create a court of great significance but it ought not do so at the expense of riding over the States and depriving them of any interest in the continuance of this scheme.

We feel that the amendment that has been presented here today is one which will give the States a real opportunity. If they do not take it, then the Federal Attorney-General has a right to proceed and appoint judges. But I hope that this Committee will recognise that in this compromise situation, in this arrangement with two forms of courts operating I am sure in cooperation and with the same common purpose, it will be found to be a successful method of working this Bill.

Question put:

That the proposed new clause 20 (Senator Missen's amendment) be inserted.







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