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Wednesday, 27 November 1974
Page: 2884


Senator MURPHY (New South WalesAttorneyGeneral) - I move:

In sub-clause ( 1 ) after 'sub-section (2)'. insert 'and section 94'.

In sub-clause (2) leave out 'exceptional'.

After sub-clause (2) add the following new sub-clauses: "(3) A person who has instituted a matrimonial cause or a person who 'is entitled to participate in proceedings either as a respondent or intervener may apply to the Australian Legal Aid Office for legal assistance under this section in respect ofthe proceedings. "(4) Where an application is made by a person under subclause (3). the Attorney-General, the Director of the Australian Legal Aid Office or a person employed in the Australian Legal Aid Office authorized by the Director in writing in that behalf may (in the case of a person employed in the Australian Legal Aid Office, subject to any restriction in that authority in writing), authorize legal assistance to the applicant in accordance with the means and needs test ofthe Australian Legal Aid Office for the giving of legal assistance.'

These sub-clauses deal with the question of costs. Whilst I move the amendments one of them troubles me very much. That is the amendment to sub-clause (2). The Senate Standing Committee proposed that we should leave out the word 'exceptional' in the sub-clause, which reads:

If the court is of opinion in a particular case that there are exceptional circumstances that justify it in doing so, the court may. subject to the regulations, make such orders as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court thinks just.

That is a qualification on the main rule which is expressed in sub-clause ( 1 ), which provides that each party to the proceedings under the Act shall bear his or her own costs. One of the things that I should like to see removed out of this area is the heavy burden of costs which have fallen upon people. I know that the Standing Committee thinks that there may be cases where orders for costs should be made. I am of the feeling that it ought to be only in exceptional cases.

I feel that we can probably deal with the costs which a party has to meet by the provision of legal aid, if the party cannot bear the costs. Experience has shown that these questions of costs can be very difficult. Sometimes costs can be ruinous, and sometimes they can be a means of really deterring parties from putting their cases properly. However, legal aid will probably make up for any deficiencies that might be found in the law. If the law is applied wisely I do not think that there will be any problems. I know that there will be some dissension over the removal of this, and I do it not very happily. But in order to get some concensus in a law such as this, one has to make some compromises. This is one which I make not very happily, but I make it.







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