Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Tuesday, 26 November 1974
Page: 2776

Senator GREENWOOD (Victoria) -I support this amendment but I do so in a lukewarm fashion because Senator Everett's points, to my conception, and I think underlying all I have said in this debate until now, state the position quite clearly. Senator Everett made an assumption that a proclamation had been made, and upon that assumption there were problems which would exist in having State Family Courts as envisaged co-existing alongside a Federal Family Court. I thought the arguments he put would indicate my thinking- while in some respects there could be differences of opinion- as to how people would respond and as to how the courts would develop. It is that fear which I have had which has been underlying the points I have endeavoured to make up to now. I fear that there will not be any State Family Courts created. I am quite sure that Senator Everett likewise would be of the view that the conditions laid down in Senator Missen 's amendment are such that it would be a mighty curious State government which would ever concede the points sought to be asserted by the Commonwealth Government.

Senator Durack - I know of 2 State governments that already are very interested in it.

Senator GREENWOOD - I know of a State government which was interested in the concept also but it did not know what was in the fine print. I can only say that when that government became cognisant of the fine print there was horror writ large. I come now to what I think is the fundamental problem here, that is, that unless there is a proclamation there will be only a Federal Family Court. That is clear. If there is a Federal Family Court I think that what Senator Durack has said is probably pertinent. Ultimately there could be 40 to 50 judges. Ultimately 40 to 50 judges could be appointed for life. Ultimately one could image some of those judges exercising jurisdiction into their eighties. I think that is a fundamental objection to a Federal Family Court so constituted. 1 believe that members of the Committee who have supported the concept of a Federal Family Court know it is a flaw in the idea. Yet that is likely to be- I am pretty sure it will be- the result of this legislation. One can only hope that a more reasonable successive government will seek to avoid the consequences before too many of these potentially geriatric judges have been appointed or that there is a courageous government which will have an amend ment' to the Constitution which will operate as from the day it is passed.

Senator Button - And a courageous Opposition.

Senator GREENWOOD - Being a courageous Opposition gets a little tiresome sometimes. Nevertheless I think we are in the worst of all possible worlds at the moment. We will not have the State Family Courts because I cannot see any proclamation being agreed upon, either because a State government will not accept the terms or because a Commonwealth Government is not interested in creating the State Family Courts. In that particular situation we will be left with a Federal Family Court and I suspect that the argument we have passed between ourselves about potentially geriatric judges is the least important of the arguments I have raised against such a court. The important thing is that service to citizens, to people who want to avail themselves of the facilities, will not be as great as if we utilised the existing State court structure and the facilities which the States can provide. Moreover, we would avoid all the incipient constitutional problems that I can foresee. 1 would like to think that if this amendment is not disposed of before the sitting is suspended, Senator Missen will give some consideration to amending some of the clauses to endeavour to make the State Family Courts a true alternative, by not making it a matter which depends upon proclamation but making it a court to which persons have a right of access alternatively with the Federal Family Court. He might endeavour to ensure in that way that a State Family Court can be meaningful. I sense that once the Federal Family Court is established the arguments which Senator Everett has raised will be persuasive to those who have clients to advise. But at least if it were there as an alternative--

Senator Missen - It is there now.

Senator GREENWOOD -AU I say is that there is no provision for the South Australian Family Court to be availed of under the provisions of this proposed Act. There is absolutely no provision in this Bill which will enable people to continue to go to the South Australian Family Court and to utilise the provisions of this legislation. If the Attorney-General can obtain an agreement between South Australia and the Commonwealth Government under which South Australia will concede to the Federal AttorneyGeneral a veto power over the judges appointed by South Australia then maybe the Commonwealth Government will get some access under the terms of this amendment, if it is carried, to the South Australian Family Court. But unless that is achieved there will be absolutely no access to that Court. For a new body which is developing in South Australia and which is, of course, the pacesetter I suspect for the whole of Australia, this amendment will be a great disadvantage and, I think, a disappointment. I ask Senator Missen to consider his sub-clause (4) which contains the provision under which he expects the States to agree to the judges of the Court being appointed only with the approval of the Commonwealth Attorney-General. I do not believe that any self-respecting State AttorneyGeneral for one moment would agree to that provision. When we consider that the appointment of judges in the States is a matter for the whole Cabinet of the State to decide, depending upon the approval of the State AttorneyGeneral, we realise that this provision is out of the question.

Senator Missen - Does the honourable senator think the States would prefer to have the judges appointed by the Federal AttorneyGeneral? That is the alternative, is it not?

Senator GREENWOOD -The States have nothing to do with the situation which is established by a Federal Family Court. They are given no role to play and therefore they do not expect to have any role. But in a State Family Court I suspect that they would want to have the power of appointment even if that power of appointment were in some way to be constrained by a requirement of consultation. I do not believe that a Commonwealth Attorney-General for one moment would consider that any appointment that he makes ought to have the approval of a majority of State Attorneys-General. I think that considerations of that character tend to result in compromise which ultimately satisfies nobody. In the area of judicial appointments, I think that it is probably the least satisfactory course. 1 ask Senator Missen to consider whether it is a proper thing for us to pass legislation requiring State appointments to judicial office to be subject to the approval of the Australian AttorneyGeneral. Likewise I think it is a requirement quite unusual for the Commonwealth to say that State judges shall retire at the age of 65. Surely that is a matter of State responsibility in which the State should have the power to say at what age its judges should retire. I invite Senator Missen, if he will, in the intervening period to give consideration to amending his amendment to endeavour to give it teeth which it lacks at the present time. The obviously satisfactory course would be to make a clear cut decision. Is there to be a Federal Family Court? In that case it seems to me there is no place for State family courts. Or are there to be State Family Courts? In that case a Federal Family Court is redundant. I hold strongly, even though the numbers are against me, to the concept of State family courts for a variety of reasons. This offers some prospect that in some way under a subsequent government the State Family Courts might get a leg in. So I will lukewarmly support the amendment, defective though I think it is in many respects.

Sitting suspended from 6 to 8 p.m.

Senator Sir KENNETHANDERSON (New South Wales) (8.0)- When this amendment was moved I listened very carefully to Senator Missen 's views as he put them to the Committee and I had some reservations about the matter. I took comfort in the thought that after all this is really a legal matter in which we have learned senators from all States of the Commonwealth participating. So I thought that before I made a judgment with my open vote I had best listen very carefully to what was said. I must confess that I was reasonably impressed with the point of view put by the mover, Senator Missen. Then Senator Everett, our colleague from Tasmania, put the contrary view and I thought then that I would have to make a judgment on the pros and cons. Then we had a contribution from Senator Greenwood and I thought: 'This will be good because we will get a balance of the views'.

Senator Greenwoodsaid that he would support the amendment but thereafter I do not think he said one good thing about the amendment. I thought: 'I am only a humble lay Presbyterian. Perhaps I am out of my class. I had better go outside. ' But I stayed with it to the best of my limited ability as a layman. Then when Senator

Greenwood came to his peroration he said that he was going to support the amendment but it was only lukewarm support. It might have been lukewarm for him but it was cold comfort for me. I must confess that at that stage, despite the lawyers, I was still concerned as to what side of the ship I was going to make my stand, on the starboard side or on the port side. I listened to Senator Durack 's contribution and, while it will not be cold comfort, I think that on the balance of the arguments up to this point of time at any rate I would stay with the amendment, but I am hoping that there will be some more contributions from the legal eagles. Perhaps then I will be confirmed in my views.

Suggest corrections