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Thursday, 21 November 1974
Page: 2661

Senator MURPHY (New South WalesAttorneyGeneral) - I move:

In sub-clause (2) leave out 'or of a legal practitioner representing a party'.

The amendment was recommended by the Senate Standing Committee. It is referred to in paragraph 29 of the Committee's report. It excludes the attitude of the legal practitioner of a party as a relevant consideration when the judge is considering the possibility of a reconciliation of the parties. That is briefly the basis of it. The amendment comes from the Committee. A number of these amendments come from the Committee. I shall endeavour to indicate which they are. It seemed wise and convenient for me to move the amendments although they were initiated by the Committee.

Senator Sir Kenneth Anderson - Do you propose to give some explanation of the Committee's proposals other than stating what it is or does it require a member of the Committee so to do?

Senator MURPHY -I suppose the judge or magistrate is really referred to the parties themselves. There may have been a tendency for the judge or the magistrate to look to the representatives of the parties. One may say that is good enough for the judge or magistrate to do, but this provision rather indicates that he needs to look to the parties themselves rather than to their legal practitioners. In regard to this matter the Senate Standing Committee on Constitutional and Legal Affairs recommended:

The Committee recommends that in clause 14 (2) of the Bill, the words 'or of a legal practitioner representing a party' be deleted from the Bill, as it is felt that their inclusion may lead to their improper use as a legal manoeuvre, rather than to serve their proper purpose. It is in fact the attitude of the parties or either of them' which should be the court's concern not the attitude of the legal practitioner appearing in the case.

I put it this way: The tendency will be even more for the judge to say that he must be concerned to know the attitude of the party. If he can say that he takes account of what is said by the party rather than by the legal practitioner it may well be not so much a legal manoeuvre but he will have a tendency to accept that he ought to be getting through to ascertain the attitude of the party. That is the important thing that seems to me to operate in it. Logically one could say the party or the legal practitioner or either of them and so forth, but I think probably the better course, as the Committee recommended, is to ensure that the judge or magistrate will concern himself with what the party's attitude is.

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