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Tuesday, 26 November 1974
Page: 2763

Senator GREENWOOD (Victoria) -I think that the last statement made by the Attorney-General (Senator Murphy) ought to be reflected upon because to suggest that the way in which judges have exercised their rule making power is quite scandalous-

Senator Murphy - I said: 'In some areas'. I could cite them.

Senator GREENWOOD - I simply say that I think the Attorney-General would be well advised to reflect upon those words. I think that is casting a reflection upon the judges which is not warranted. There may be a difference of opinion as to whether rules have been properly made but to say that in any area the judges' exercise of the rule making power is scandalous is, I think, an unwarranted reflection.

Senator Murphy - Perhaps, Senator, it might be better expressed by saying that their nonexercise in some areas of the rule making powers could be said to be scandalous.

Senator GREENWOOD -The use of the word 'scandalous' is still inappropriate in the circumstances. The fact is that the AttorneyGeneral has practised in court. I have practised in court. All lawyers have practised in court. The ordinary courts of the land have rules of precedure which are made by judges. Judges have been given the power to make these rules because they are conversant with the applications being made to the court and with the steps and procedures which ought to be followed by those who make applications to the court.

Senator James McClelland (NEW SOUTH WALES) - What about if they do not exercise that power?

Senator GREENWOOD - I do not quite see how it is that they do not exercise the power. The rule making power is there. If a need exists the judges have the ability, by their own decision, to meet the need. They do not have to go to the Attorney-General of the day and request that an amendment be made to regulations and to await the time consuming period which may elapse before the amendment is made. Judges can deal with a situation where they see a need for rectification but which they themselves are unable to rectify. Furthermore, it adds a connection between the judiciary and the executive which I think is always fraught with problems because the power of the executive over the judiciary strikes at the independence of the judiciary. I know that the argument can be taken to a stage where, while it does not render the situation absurd, makes it appear less attractive and persuasive than it should be. Fundamentally there is a principle that judges, as far as possible, should be in control of their own affairs because that is the way our system works. There is a nexus at the time a judge is appointed by the executive. A lot of people suggest that even that nexus is one which ought to be removed. Nevertheless, that is part of our Westminster system and we accept it. But in all other areas, apart from that nexus, we ought to endeavour to keep the judiciary separate from the executive.

Senator Murphy - Yet the honourable senator is suggesting that they make rules and that they be subject to disallowance.

Senator GREENWOOD -That is a scrutiny which ought to be preserved, just as there is a power in the Parliament- if both Houses agree- to remove a judge for misbehaviour. Again that is a proper scrutiny. Of course it is consistent in each case with the gravity of the situation to determine the type of parliamentary oversight which should be allowed. I do not recall any occasion that I have been in the Senatethe Attorney-General has been here longerwhere any rule of court has come before the Senate by way of a motion for disallowance. That is not the thing which is required to be done. But the fact is that the power is there and that is where the power should lie. My point is that to create a family court which is to have the character of flexibility about it, to give to the judges a competence to deal with matters as they arise and to require that there be regulations is, I think, to limit the judges' operation.

I shall accept that there ought to be occasions when the judges' operation is limited. But let the limiting factor be not regulation which the executive makes but the rules which the judges make. They can alter the rules so much more speedily and consistently with the type of flexible operation which the Family Court necessarily requires. I do not think it is satisfactory to refer to the Federal Court of Bankruptcy, the existing Matrimonial Causes Act or the Conciliation and Arbitration Act to show that because there are regulations in those cases there ought to be regulations generally. The other courts of the land have rules made by judges. That ought to be the type of control of procedure which is applicable in this case. To test the feeling of the Senate I move:

In proposed new clauses 1 7s and 17t leave out 'regulations ', insert ' rules of the court '.

In due course that means that in the definition section of the Bill a definition will be inserted that it is the rules made by the judges of the court. But we are going back to the definition section and that can be dealt with then. I urge upon the Attorney-General that to require regulations in this area is to put a proscription upon the operation of a Family Court which is inconsistent with all the virtues which are claimed for it.

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