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Wednesday, 9 October 1991
Page: 1561


Mr DUFFY (-Attorney-General)(4.35 p.m.) —-I move:

That the Bill be now read a second time.

This Bill implements the recommendations of the first report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act that, as a matter of priority, the Family Law Act 1975 be amended to fix a maximum age of 70 years for judges of the Family Court.

When the Family Law Act was enacted in 1975 there was no maximum age for judges appointed to the Family Court. Judges had life tenure in accordance with section 72 of the Constitution, as it then stood.

The 1976 report on retiring ages for Commonwealth judges by the Senate Standing Committee on Constitutional and Legal Affairs recommended that a compulsory retiring age should be introduced for all federal judges. The Committee recommended that the appropriate maximum age for justices of the High Court should be 70, and that, after an appropriate amendment to the Constitution, Parliament should legislate to prescribe a maximum age of 65 for judges of other federal courts. The proposal to amend the Constitution to provide a compulsory retiring age for all federal judges was accepted in the 1977 referendum.

Following the referendum in 1977, section 72 of the Constitution was amended to provide a maximum age for federal judges of 70 and to provide that Parliament may make a law fixing a maximum age for judges of a court created by Parliament at less than 70 years. The only law made pursuant to section 72 fixing a maximum age for judges at less than 70 years is in relation to the Family Court.

Section 23A of the Family Law Act 1975, which fixes the maximum age for judges of the Family Court at 65, was inserted in the Act in 1977 following the constitutional amendment. At that time the provision of a maximum retiring age of 65 was a reflection of community concerns that Family Court judges should be aware of and keep abreast of current social values and attitudes and took into account the demanding and arduous nature of some, if not all, family law disputes.

The Joint Select Committee believes that the reasons for fixing a retiring age of 65 for the Family Court are no longer valid. The Committee concurred with the views of the Family Law Council that it is important for Family Court judges to be aware of current social values and that there would not be a substantial difference, in this area, between judges who were 65 and those who were 70.

The amendment will not require judges to remain on the Court past the age of 65. Judges will still be able to retire at an earlier age, and if over age 60 will be entitled to receive the maximum judicial pension if they have served 10 years or more as a judge.

For some time criticism has been made of the nature of the Family Court and its operations. For example, in 1985 Chief Justice Gibbs made some criticisms of the specialist nature of the Family Court in his address to the Twenty-third Australian Legal Convention on the State of the Australian Judicature.

His Honour noted the limited scope of the jurisdiction of the Court and questioned whether the work of the Court required strengthening. He also suggested that the limited scope of the jurisdiction of the Family Court was unlikely to attract lawyers who might be expected to be appointed to Supreme Courts or the Federal Court.

I believe the experience of the Family Court over the past 15 years has demonstrated the wisdom which led to its establishment. The past 15 years have not been easy. Nevertheless the Court has maintained the highest standards in the administration of justice. Since its inception in 1976 the Court has attracted judges and other officers of a high standing in the legal profession.

In recent years the Government has taken some initiatives to ensure that the Court continues to have the capacity to attract high calibre lawyers. For example, following the recommendations of the 1987 report of the Advisory Committee to the Constitutional Commission on the Australian Judiciary, the Government legislated to increase the jurisdiction of the Court.

The Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 provided a mechanism whereby the Family Court could exercise jurisdiction under the Administrative Decisions (Judicial Review) Act 1977, the Bankruptcy Act 1966, the Income Tax Assessment Act 1936 and the Trade Practices Act 1974. Further, Commonwealth and State cross-vesting legislation allows the Court to exercise the jurisdiction of the Federal Court and various State Supreme Courts in appropriate matters.

Following this increase in jurisdiction, the Government legislated to bring the salaries of Family Court judges into line with Federal Court judges. The amendment to the Family Law Act to increase the maximum retiring age of judges from 65 to 70 years will ensure that the terms and conditions of judges of the Family and Federal courts are equivalent.

This Bill amends the Family Law Act by repealing section 23A which fixed the maximum retiring age at 65. The provisions of section 72 of the Constitution, providing a maximum age of 70 for Federal judges, will apply to all future appointments to the Family Court. When the legislation is passed, the existing judges, whose commissions are limited until age 65, will be given new commissions in terms of the new age limit.

The Bill also amends section 41 of the Family Law Act to provide that judges appointed to State Family Courts are permitted to hold office until age 70. This is to ensure that judges of the Family Court of Western Australia, the only State Family Court established under section 41, may also hold office until age 70. I present the explanatory memorandum to the Bill and I commend the Bill to the House.

Debate (on motion by Mr Wilson) adjourned.