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Tuesday, 26 November 1974
Page: 2755

Senator DURACK (Western Australia) - 1 regard this amendment and the previous one as very important. I regret that for other reasons I was not in the chamber when the Committee discussed the previous amendment, the result of which now is that the AttorneyGeneral can proceed to establish the Federal Family Court with a chief judge and 6 other judges, but he must prescribe by regulation what other judges will be necessary. I believe in most circumstances that the proper way for Parliament to set up a court is actually to prescribe the number of judges that will be necessary. In fact the Act would limit quite specifically the number of those judges. Even if more judges are required from time to time, the Attorney-General of the day would inform the Parliament. Additional judges would be appointed only for good reasons. I think that is the time-honoured control that Parliament has always kept over both the Executive and the judiciary.

Senator Wood - That is, to do it by legislation.

Senator DURACK -Yes. I think we must always maintain that control over the Executive. Let us face it; the appointment of judges is a very great exercise of patronage by the Executive. It is an area over which the Parliament should keep a very strict control. Here we have a situation in which it is very difficult, because of the creation of a new court, to decide how many judges will be necessary. The question of how many judges will be necessary is linked also with the question of State Family Courts, if they are created, and so on. Therefore, I believe it is most important that this Parliament should keep an eye on the number of judges appointed to this court. 1 put my case mainly on the general principle that Parliament should keep control over such an important matter as the number of judges that may be appointed.

We are prepared to make an exception here to enable it to be done by regulation, because we do not at this stage really have the knowledge to insert the number of judges that may be required. It is an absolutely necessary corollary that we have this additional amendment which requires that regulations will not take effect until the Parliament has been sitting, apparently, for 7 days. Otherwise Parliament will be presented with a fait accompli. If the regulations which create additional judges can be made, the appointments can be made and then the Parliament cannot undo those appointments that have been made by disallowing the regulations. In my opinion it is absolutely vital that this amendment be passed. The whole principle is to enable the Executive to have a little more latitude, but we certainly must keep that ultimate control.

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