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Wednesday, 31 May 1972
Page: 2319

Senator GREENWOOD (VictoriaAttorneyGeneral) - I move the following amendment:

Leave out clause 41, insert the following clause: 41.- (1.) Section 104 of the Principal Act is amended -

(a)   by omitting from sub-section (1.) the word "two" and inserting in its stead the word "three";

(b)   by inserting in sub-section (2.), after paragraph (a), the following paragraph: "(aa) proceedings for an offence against section forty-six of this Act;";

(c)   by omitting paragraph (e) of sub-section (2.); and

(d)   by adding at the end thereof the following sub-section: - "(5.) Where-

(a)   the hearing of a matter has been commenced before the Court constituted by three or more Judges; and

(b)   before the hearing and determination of the matter have been completed, one or more of those Judges has or have become unable to continue to take part inthe hearing and determination of the matter by reason of illness or death or otherwise, the hearing and determination of the matter may be completed by the Court constituted by the remaining Judges if they are not less than three in number, or if, where they are two in number, the parties agree to their completing the hearing and determination of the matter.". "(2.) The amendments made by paragraphs (a), (b) and (c) of the last preceding sub-section do not apply in relation to proceedings the hearing of which commenced before the date of commencement of this section.".'

In short the amendment seeks to provide that when proceedings are before the Commonwealth Industrial Court under sections 140 or 141 of the Act the Court shall be constituted by a bench of 3 judges. The amendment also provides that if one of the judges should be unable to continue to take part in the hearing and the determination of the matter because of illness, death or otherwise, if the parties consent the proceedings can be continued by 2 judges. The existing provision is that 1 judge may hear these matters. In practice I understand that the usual course - although it is not a course which is followed on every occasion - is that 3 judges sit by direction of the Chief Judge of the Court. Therefore the effect of the amendment will be to give statutory form to what is currently the practice. I think it generally would be regarded as desirable that 3 judges should constitute the membership of the Court which hears matters set out in section 104 of the principal Act.

I might say that the consideration of this amendment arose from an examination of a proposed amendment which had been circulated by the Opposition. The Government did not like the Opposition's amendment because it sought to establish an appeal from one judge who might hear a matter to a court consisting of 3 judges. The Government felt that this would involve additional legal proceedings into an area where we desired to keep the legal processes as minimal as possible. The Opposition's amendment would also have created a situation in which there could be a multiplicity of members of the Industrial Court, and we thought we could possibly achieve the objective which we believe the Opposition had in mind by making a comprehensive amendment to ensure that, in the first instance, these matters were heard by a court consisting of 3 judges. For those reasons the Government proposes that clause 41 as it now stands in the Bill should be left out and that new clause 41, as circulated, should be inserted.

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