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Tuesday, 26 November 1974
Page: 2771

Senator EVERETT (Tasmania) - I agree with Senator Missen that this proposed amendment is an important one; indeed it is a fundamental one. But so that it can be fully understood it is necessary, I believe, to analyse what the Committee has already determined that the law should be, because of votes earlier this afternoon the Committee has established the Family Court of Australia. Clause 17b does that. Clause 1 7c provides certain criteria with respect to the appointment, removal and resignation of judges. Clause 17d deals with seniority. Clause 1 7h deals with the place of sitting. Clauses 1 7j to 17n deal with the general jurisdiction of the Court. So there is a group of clauses, of which the Committee has already approved, which establishes a self-contained superior court of record at Federal level.

The scheme of the Bill, as expressed in some of its provisions, is that the Family Court will gradually absorb the jurisdiction of the State Supreme Courts and of courts of summary jurisdiction. Yet in the light of that there is the proposal from Senator Missen to set up alongside the Family Court- not in lieu of it- a number of State courts with, in effect, concurrent jurisdiction. I emphasise the word 'concurrent' because nowhere does Senator Missen 's amendment seek to oust the jurisdiction of the Federal Family Court which this Committee has agreed ought to be established. So there would be the situation of a Federal court side by side with a State court. Indeed, Senator Missen suggests that the courts ought to be in the same building, both exercising the same jurisdiction. I submit that that, on examination, is futile, wasteful and confusing. Yet because of constitutional limitations and other limitations which flow from the very provisions of this Bill, the State Family Courts must be inferior, they must be second class compared with the Federal Family Court. It is no use Senator Missen shaking his head. Inevitably they must be. I give 5 examples simply to illustrate my point. In the first place, judges of State family courts could never be members of the Full Bench of the Federal Family Court. They would always be sitting singly. They would always be sitting in isolation. Secondly, their salaries and allowances would not necessarily be the same as those of judges of the Federal Family Court.

Senator Durack - Surely that would be part of the arrangements.

Senator EVERETT - It may be part of the arrangments but a moment's glance at the various differences in the structure of judicial salaries throughout Australia would prove, I suggest to Senator Durack, that if State family court judges, other than the chief judge and the senior judge, were put on the same basis as Federal Family Court judges it would throw the financial structure as far as salaries were concerned out of kilter in the States. One just could not do it because one would reach a situation in which a judge of a State family court in some cases would be getting more than a Supreme Court judge. That is the sort of thing that this proposal will engender.

The third illustration that the State family courts would be second class can be seen in the fact that under Senator Missen 's proposal there would be 2 concurrent streams of appellate jurisdiction from courts of summary jurisdiction. In other words, one could go either way; one could go to the State court or one could go to the Federal court which would sit, as Senator Missen would say, in the same building. A fourth point is that judges of State family courts could not, because of constitutional limitations, exercise the jurisdiction which would be conferred on the Federal Family Court under proposed sections 17m(1), 17m(2), 17ma and 17n because those proposed sections deal with a jurisdiction which flows from the Marriage Act and that could not, except by the leave of this Parliament, be conferred on State courts.

Senator Missen - That is what would happen.

Senator EVERETT - Senator Missensays that it would happen but he does not have the faintest idea, I suggest, of what would happen as far as the negotiations are concerned. Some States would be co-operative. Other States clearly, in view of their history, would not be co-operative. Let us face the facts of political life. Fifthly, I suggest that it is not likely that legal aid would be available in State family courts, as it is under this Bill. It could be said that that could be made the subject of arrangement. Why intrude into the system that is being created by this legislation the additional side by side concurrent jurisdiction of inferior second class courts, because that is what we are doing by this amendment?

I would advance the following political and practical arguments against the amendment: Firstly, there will inevitably be considerable delay. The history of State GovernmentAustralian Government negotiations on important matters is not such as to encourage a belief that the negotiations could be carried out speedily. The proposals would require State legislation which may or may not be passed. In the end what will happen? The 6 Family Court judgesthat is what we are limited to at the moment; there is no licence for any more by virtue by the vote of the Committee- will try to get this enlightened legislation off the ground. I suggest that this amendment is destroying this legislation. Secondly, most States have shown very little interest in family law matters. It was not until this year that even a limited right of legal aid appeared in the most populous State in Australia, New South Wales. Thirdly, I would submit that the Family Court needs single direction. It needs a unified concept of helping out. It needs to develop team work between judges and ancillary staff, including counsellors and welfare officers. Under Senator Missen 's proposal State judges would not be answerable to the chief judge of the Family Court, nor would they form part of the directorate. There could not be a coherent approach to practice matters or to administrative problems because there would be separate courts. The height of absurdity is reached, I suggest, when I point out that Senator Missen 's amendment would mean that matters resulting from the breakdown of one marriage could be split between 2 sets of courts.

Senator Baume - Will that not happen anyhow in relation to certain matters that cannot come under the Federal Family Court's jurisdiction?

Senator EVERETT -Only to the extent that the philosophy of the Bill is that certain courts should not deal with all matrimonial causes as they are defined. I suggest that courts of summary jurisdiction cannot deal with matters of principal relief and they cannot deal with certain other matters in relation to property above $ 1 ,000 without consent. I suggest that there is no point in Senator Baume 's interjection. Senator Missen 's amendment means that in relation to matters arising out of the same breakdown one can have a ball. One can invoke the same jurisdiction through 2 separate courts. One can have custody dealt with in one court and property matters in another. That is the effect of it. As a national Parliament we ought not to be encouraging that sort of nonsense. Fourthly I would suggest that it is invidious that judges should need to be concurrently approved and appointed by State and Federal governments, many of which will often be of different political philosophies. Senator Missen 's amendment forces a situation in which a State government would have to propose a particular judge and the Australian Government might say, for various reasons or for no reasons at all: 'No, we will not appoint him '. This is an ugly situation. I do not know whether it was in relation to this point that Senator Greenwood interjected- my attention was diverted at the time. To say that it is without precedent does not damn it. It is damned by its own terms. It is an untenable situation.

I say that a State family court would be a second class court also for the reason that the best judges would not be attracted to State family courts. They would naturally seek Federal Family Court appointments. Senator Chaney shakes his head, but it is in the nature of human beings to do this. They will do it, and the State court will be a second class court. There is no doubt about it. What will happen to the poor public in whose alleged interest this legislation is being passed? How confused they will be. They will go to their legal advisers and, perhaps in a form of words which will become fairly garbled as the years pass, they will be asked: 'Do you wish to go to the Federal court or will you go to the State court?' It is a bit like going to a public hospital or a private hospital. The public will not have a clue what the advantages or the disadvantages are.

Senator Greenwood - Which do you regard as the public and which do you regard as the private hospitals in this context?

Senator EVERETT - I would think I put the words in their appropriate order when I gave the example. Undoubtedly the public would come to regard the situation which would be created under this beneficial legislation as one in which there were 2 sets of justice- one Federal and superior and one State and inferior or second class. Senator Missen 's amendment would involve also the proposition that we would get general unanimity among 7 Attorneys-General. I know that all seven do not need to be signatories to the same agreement. Of course they do not. But generally one would want that situation. A moment's glance at the endeavours during recent years to reach unanimity amongst 7 AttorneysGeneral would indicate that that proposition is not tenable.

I submit to the Senate for all those reasons, which 1 expressed as quickly as I could, that this amendment is unnecessary, lt is calculated to establish a second class system of State courts. It undoubtedly will lead to disputes between the State governments and the Australian Government as to the terms of the proposed agreement. To argue that it is made necessary by the fact that geriatric judges will be appointed or that judges will be appointed who will become geriatric I suggest is like taking a sledge-hammer to crack a nut.

Senator Missen - What is the solution to that?

Senator EVERETT - The solution comes not from me but from Senator Greenwood, as recorded at page 2685 of Hansard when last Thursday night he, speaking with all the authority of his position as Deputy Leader of the Opposition, said that he would support an amendment to the Constitution.

Senator Missen - Like the nexus in 1 967?

Senator EVERETT -No. I would say it would be passed with a sweeping majority, as the referendum relating to Aborigines was passed, with a majority of 95 per cent. The situation is untenable. I do not for a moment imagine that the Attorney-General will appoint judges geriatric ab initio, if there is such a breed of animals. So there would be a few years in which they could pursue the transition from their present state to one of being geriatric. If in that time we could not achieve an amendment to the Constitution then both parties ought to resign. I strongly oppose this amendment, which 1 would not be so churlish as to suggest was dictated or motivated by any thought of centralism, State rights or anything like that. I think that it was purely conceived, but it is being mutilated in the course of its gestation and it will produce not a robust child but a very second rate child, in the shape of State family courts that will be only a shadow of the national court which the Senate has already agreed should be established.

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