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Tuesday, 26 November 1974
Page: 2778

Senator MURPHY (New South WalesAttorneyGeneral) - I do not agree with the amendment proposed by Senator Missen. Senator Everett has set out many of the arguments against it and I might refer briefly to them. The Family Court needs a single direction, a concept of helping out and a developed team work between judges and ancillary staff, including counsellors and welfare officers. The State judges, because of their position, will not be able to be part of that teamwork. They will not be answerable to the Chief Judge and will not form any part of that direction. The State and Federal judges cannot form a composite court and even if they occupy the same building they have to sit separately. The concept we are developing here is of a Federal law with Federal regulations, to be paid for by the Australian Government out of funds appropriated by this Parliament. The Family Court itself is to consist of judges appointed in the normal way through the Australian Government. The extra element that is proposed to be added to this concept will not mesh with it. I suggest with all respect to those who support the amendment that it is introducing an element of clumsiness. The public could become confused about it.

One of the difficulties with the existing legislation is that we have a Federal Act administered by State courts and it has been unsatisfactory. This Parliament has not concerned itself as much as it should have with the administration of the Act because the administration was in the hands of State courts. The State Parliaments have not concerned themselves with the administration of the Act because, although State judges were administering it, it was a Federal Act. These are reasons why there has been a great deal of neglect of this legislation over the years with not the proper attention being given to it that should have been given to it. This amendment would have the effect only of carrying on that unfortunate tradition by having the judicial administration split in this way, so although there is a welcome step towards the family court there would be added to it this kind of State court machinery. I really think that it is quite undesirable and I suggest that the Senate should not introduce this element. Since 1901 it has been contemplated that this was a Federal legislative subject. If we had suggested then to those who were contemplating this legislation that if a court was to be set up under Federal legislation it be done in this way they would have been astonished. It is said that because it is a precedent that is no good argument against it but 1 suggest that it is not a desirable precedent and I ask this Committee not to accept the proposal.

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