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Tuesday, 26 November 1974
Page: 2750

Senator GREENWOOD (Victoria) - I thought that we were debating the title because it was a convenient opportunity to discuss the concept. I hope when we deal with the precise clauses that the particular matters relating to these clauses may be raised. But there are two or three matters I desire to advert to which have not been raised so far. I leave aside the question raised by Senator Missen and invite him to reconsider the passage he read from Professor Finlay 's article because clearly what Professor Finlay is there saying, and also says in the final paragraph of the article, is that he looks for a State family court as part of the co-operative federalism which he believes is important. He refers to 'a State family court administering Federal law', which is the argument which I feel ought to prevail. This proposed new clause of the Bill establishing a Commonwealth family court is not what Professor Finlay is there looking to.

Senator Missen - But he does say in his last sentence that it could be seen as a essential part of the system.

Senator GREENWOOD -Oh, yes. I imagine that he never visualised that there would be a family court set up by the Commonwealth. I would have thought it would have struck him right at the outset as having constitutional problems which he would not have thought would have been so easily passed over as, in fact, they have been passed over. Maybe I did not read the passage correctly but doubtless at some stage he will clarify his views or clarify mine. The one point which I think is not resolved is how we will overcome what the Committee recommends as avoiding the problem of elderly judges. The report of the Senate Committee stated in a passage I read during the second reading debate that it was concerned with the effect on the creation of a family court and the appointment of judges and of section 72 of the Commonwealth Constitution which, in general, requires judges of the family court created by Parliament to be appointed for life. The Committee does not believe that it is desirable that judges of this court should adjudicate when of advanced years. That is one aspect of the problem.

The second aspect is that judges of the Federal courts exercise a judicial power. I understand that much of the work which the Family Court, as set up by the Commonwealth, is proposing to do will not be within the concept of an exercise of judicial power. Questions must therefore arise as to how far activities which are not determining rights between citizens are an exercise of that judicial power. Another point arises in the later clauses where there is a provision which in effect states that the Governor-General may, by proclamation, exclude all jurisdiction of the State courts. I appreciate that in its early stages the idea is that State supreme courts will probably be used and that State courts of summary jurisdiction will also be used. As this concept of a Commonwealth Family Court develops so matters will go into that Family Court. But at a point in time it is envisaged that the State supreme courts will not be entitled to exercise any jurisdiction in any of these areas which are currently matters of supreme court jurisdiction. Likewise State courts of summary jurisdiction will not be able to exercise jurisdiction. One visualises therefore that hosts of matters which are commonly the preserve of courts nearest to the citizen will have to be taken to some Commonwealth court whenever a judge or a magistrate is available and wherever it is. I cannot see that that will aid the concepts which are behind this legislation.

I understand also that this concept of a Family Court, coming as it does as an amendment at a late stage- it is only within the last fortnight to 3 weeks that the amendment for this Family Court has been circulated- has not been worked out in co-operation with State or Territory judges. I believe, from what I have been told, that this will envisage some 40 per cent to 50 per cent of the work which is currently exercised by the State supreme courts moving into the Family Court area. A matter of this character ought to be the subject of some intensive consideration- far more consideration, I think, than the matter has been given so far. I can only regret that we are apparently letting this pass without a lot of the really difficult aspects of its implementation being considered or being regarded by the AttorneyGeneral as warranting consideration. I invite him again, if he would, to address himself to the point which Senator Baume raised and which I raise and which I think is an important matter- the matters which ought to be the concern of any Family Court will not be able to be the concern of any Family Court. What is the ground or justification for the dichotomy.

Senator Murphy - I have already spoken to that.

Question resolved in the affirmative.

Proposed new heading agreed to.

Proposed new clause 1 7a.

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