CHAIR —We will begin with questions to the High Court.

Senator LUDWIG —We on this side of politics also share your remarks about Mr Bill Campbell. Mr Doogan, how many constitutional writs have been filed relating to migration matters? Perhaps we could start from this financial year and go back a year. As you are aware, we have been following migration matters and what seems to be an exponential rise in them in the High Court. Could you update that for us, please?

Mr Doogan —Certainly, Senator. Before I do could I, through you, Senator Payne, express my appreciation to you and the other members of the committee for the assistance in bringing my appearance forward today. It is very much appreciated. In terms of the current financial year I can say that, from 1 July through to the end of January, 73 constitutional writs were filed. Of that number, I cannot say precisely how many are immigration matters, but I can say that the vast majority of them are.

Senator LUDWIG —How difficult is it to separate those 73 out into what they are—be they immigration or other matters? I am happy for you to take that on notice.

Mr Doogan —If I take that on notice, I can provide that. In terms of previous years, I recall that we dealt with this on the last occasion. I have the same tables with me. I have a table here that breaks down the various types of migration matters from 1997-98 through to 30 June 2002. If I could table that, it might be of assistance.

Senator LUDWIG —Thank you, that would be helpful. How many of those 73 matters remain outstanding?

Mr Doogan —I would need to take that on notice. In recent times, a great many matters have been sitting waiting for a decision of the court which was given on 4 February, that being in the matter of Plaintiff S157/2002 v. Commonwealth of Australia. Following the delivery of the judgment in that matter, call-overs were held last Thursday and Friday in both Sydney and Melbourne for the purpose of determining the consequences and effect of the decision in S157 on those matters. On those two days, 688 matters were dealt with and, of the 688, 586 have been remitted to the Federal Court. The balance comprises 84 that were discontinued or are to be discontinued, 13 that were stood over to another day and three applications that were dismissed; and there were consent orders in two matters.

Senator LUDWIG —Did any go to the Federal Magistrates Court?

Mr Doogan —No. They were all remitted to the Federal Court.

Senator LUDWIG —Were all the parties involved in those 586 matters advised? I am trying to understand the way in which it was decided. With respect to the decision in relation to the privative clause by the High Court, was the view taken that, as a consequence of that decision, all of those matters could then be remitted to the Federal Court; a decision by the High Court was then made to have a call-over day to undertake to remit them, and the parties were so advised?

Mr Doogan —Yes, Senator. Prior to the call-over dates, in between setting the date for the delivery of the judgment and holding the call-overs, letters were sent to the parties in each and every one of those cases. In that correspondence they were informed of the date of the decision and the fact that the call-overs would be taking place, and they were asked to be ready to say on the day what they believed the consequence was—not to argue the merits of their particular case; rather, merely to be familiar with the decision and to be able to say to the court what they believed the consequence of that decision was.

Senator LUDWIG —Of the 688, are there any remaining?

Mr Doogan —Any remaining?

Senator LUDWIG —You mentioned there were 688 and that 586 were dealt with. Is that the sum total of all the migration matters or were those the ones identified as a consequence of the—

Mr Doogan —No, those are the matters that were waiting on a decision relating to the privative clause.

Senator LUDWIG —So there are still migration matters?

Mr Doogan —There are other migration matters, yes.

Senator LUDWIG —How many?

Mr Doogan —I would have to take that on notice.

Senator LUDWIG —Is there a flavour as to what they constitute?

Mr Doogan —There is a total mixture. I could not say that they fell into one particular category or another.

Senator LUDWIG —On another topic, how many special leave applications have been filed in this financial year?

Mr Doogan —From 1 July 2002 to 31 January, 308 civil special leave applications and 82 criminal special leave applications have been filed, making a total of 390.

Senator LUDWIG —My colleague has a question in relation to the earlier migration matters.

Senator KIRK —You said there are other migration matters still outstanding and that you would take that on notice?

Mr Doogan —Yes.

Senator KIRK —Do you have an approximate figure as to how many remain outstanding?

Mr Doogan —The table that I handed over will show a breakdown of the various categories.

Senator KIRK —Is it in the same vicinity as the ones that were dealt with last week or is it a smaller number?

Mr Doogan —No. I think on one previous occasion we mentioned the cases of Muin and Lie. In those two matters there were schedules attached, and they too were sitting and awaiting the outcome of the decisions on those matters. In total, the schedules attached to those two matters number a little over 7,000. Those matters were last before the court at a call-over in November and at that time the parties were given six months; so next May will be the next call-over. At that time it will become clearer what the status of those matters are. Some, for example, would have been dealt with by consent I would imagine, others would wish to discontinue and there may be some cases in which parties may no longer be in the country. So we really cannot say until May what the likely number might be. All I can say is that it is somewhere between zero and 7,000. Likewise, it will become clear whether those matters then become individual cases in their own right and whether they are to be dealt with in the High Court or remitted to the Federal Court.

Senator KIRK —So those cases were not affected by the privative clause decision? There was no need to bring them on last week to deal with them?

Mr Doogan —No, that is right. With the sheer number of them it was difficult for the parties, because the legal representatives are in relatively small number compared to the total number of parties. It is just a question of them needing the time to work their way through them all.

Senator KIRK —Sure.

Senator LUDWIG —When will that be done?

Mr Doogan —They have been asked to have it done by May so that they can come back in May and then, essentially at a call-over hearing, decide what are the categories that these matters fall into.

Senator LUDWIG —Are there any self-represented litigants in there?

Mr Doogan —Yes, as there were last week.

Senator LUDWIG —How many parties?

Mr Doogan —How many are self-represented?

Senator LUDWIG —Yes.

Mr Doogan —Of the 7,000, I could not answer that. At the time, we were talking about numbers less than 100.

Senator LUDWIG —Of the 7,000?

Mr Doogan —Yes. Likewise, with the matters that were dealt with last week, I think at the time prior to them actually being heard the number was less than 60.

Senator LUDWIG —Of the 688?

Mr Doogan —Yes.

Senator LUDWIG —In respect of the 73 matters that were constitutional writs, how many were self-represented litigants?

Mr Doogan —I could not answer that, Senator. I would have to take that on notice. My recollection is that most of them are represented.

Senator LUDWIG —Right. Perhaps you could have a look at that. What I was seeking also to track is whether or not there has been or continues to be, if that is the right way of phrasing it, a rise in self-represented litigants appearing before the High Court.

Mr Doogan —I would like to make a general comment on litigants in person. The percentage of self-represented litigants in immigration matters is quite low compared to the general percentage. I think the reason for that is that, largely, a relatively small number of firms are dealing with these matters, so they represent literally hundreds at a time.

Senator LUDWIG —Going back to the special leave applications, how does that number compare perhaps in proportion to last year? Clearly, we have not finished this financial year, but are we on track to come in—

Mr Doogan —For special leave?

Senator LUDWIG —Yes. I just needed to come back to that area.

Mr Doogan —They are on the rise. As of 31 January 2002, there were 230 civil special leave applications, and that number has increased in the same period to 308. On the criminal side, for criminal special leave applications, the 31 January 2002 figure was 53. These are the new filings that we are talking about?

Senator LUDWIG —Yes.

Mr Doogan —That number had increased to 82 at 31 January 2003.

Senator LUDWIG —Are you aware of how many of those are litigants in person?

Mr Doogan —No, but going back to the annual report it was 40 per cent.

Senator LUDWIG —I have asked a number of questions from those separate areas in relation to litigants in person. Could you take it on notice to refine the figures a bit more than you have to date so that the committee can examine whether it has been rising. You feel that it has been rising, and it certainly looks like it has been rising.

Mr Doogan —Yes, I have no doubt that it is rising. I just cannot be extremely precise for you as to the percentage.

Senator LUDWIG —I understand some of that is because some people might start off as litigants in person and then seek legal advice or vice versa, so it becomes a little difficult sometimes, I suspect.

Mr Doogan —I have to say—and I have said this on a previous occasion—that very often the matters are self-represented because they are just hopeless cases that are devoid of legal merit. The people concerned take their case to a solicitor or barrister who says to them, `This is a hopeless case. You have no prospect of winning this case.' But they simply do not take the advice and they proceed with the case.

Senator LUDWIG —Has the strategy that the High Court is now adopting, of self-represented litigants, progressed from what you told the committee last time? Can you give us any new information about what you are doing to assist them?

Mr Doogan —We certainly assist them to ensure that they know what the rules, the procedures, the processes and so on are that need to be followed. There is also an arrangement in place, which is a relatively informal arrangement, whereby if it appears that there may be merit in the case that the self-represented litigant is bringing then that person is referred to—depending on the location—the relevant bar association to seek pro bono assistance.

Senator LUDWIG —Has the Judicial College been in contact with you to assist or to be plugged into the loop?

Mr Doogan —No, not as yet.

Senator LUDWIG —Are you aware of their work?

Mr Doogan —I am aware of their work, yes.

Senator LUDWIG —Have they been in contact with the High Court to explain what their work will be?

Mr Doogan —The High Court has been actively involved in the creation of the college.

Senator LUDWIG —Yes, I know that. I am trying to establish this on a more practical level in terms of pro bono work and being able to assist self-represented litigants.

Mr Doogan —Not as yet. I think perhaps Mr Cornall could assist you there. My understanding is that, to date, the college has been focused on getting up and running.

Senator LUDWIG —Yes, I thought it might have been a bit early but that I would try anyway.

Mr Doogan —I think in due course it is highly likely that there will be a close connection between the courts and the college.

Senator LUDWIG —Having asked the question now, it will put you on notice for next time.

Mr Cornall —If I could just interpose there, the board of the college has met on several occasions. It met most recently on Saturday morning here in Canberra. There was also a meeting over the weekend between the board and representatives of the consultative committee set up under the structure of the Judicial College, and the purpose of that meeting was for the judges themselves, who represent judges and magistrates all around Australia, to have a considerable input into the focus and development of the program of the college for the coming year and the future. So it is very much in its initial stages, as Mr Doogan said. It has a broad policy of looking at all ranges of judicial education for judges, so this would be only one aspect of it. At this stage the college has not focused down to that level of detail.

Senator LUDWIG —Thank you; that saves a little bit of work. Mr Doogan, if I can turn to the centenary of the High Court, which is this year: what work is progressing on celebrating that occasion?

Mr Doogan —The main activity for the centenary will be a conference to be held here in Canberra from 9 to 11 October. The conference is being jointly organised by the Australian Bar Association, the Australian National University and the High Court. It is anticipated that most chief justices from around the world will represent their countries at the conference. A great deal of time and effort has been put into ensuring that it will be a unique event in terms of the speakers that have been assembled for the conference. It essentially will not just look back historically but will also look to the future as far as it can. The expectation is that there will be in excess of 400 people attending that conference. I will just mention what we have included that might be of interest to you, Senator. It will not be limited to the high-flyers of the legal profession.

Senator LUDWIG —I am chasing them in another place!

Mr Doogan —It will also include a number of students from, hopefully, every law school in Australia. On Monday, 6 October, the court will be sitting in Melbourne in the Banco Court, that being the court in which the High Court first sat, on 6 October 1903. There is an exhibition due to be created in the National Archives building here in Canberra. The National Archives have expressed an interest in doing that. There is a short video being made about the High Court which will be used in conjunction with the conference but will also be available for general use, for students, for schoolchildren and so on. There is a book being produced on the High Court, not of the textbook type but rather, if I can call it this, a coffee table style book, the aim of which is to create interest in the High Court for the population at large—so it will not be the type that is beside the bed at night.

Senator LUDWIG —I am not going there!

CHAIR —It could be quite diverting, though, Senator Ludwig.

Senator LUDWIG —Are the costs being met out of your existing budget, or is there a special fund being made available?

Mr Doogan —No, the funds were made available in the current financial year and the last financial year for this purpose.

Senator LUDWIG —Will they be expended?

Mr Doogan —I anticipate they will, yes.

Senator LUDWIG —We might leave it until May to follow up a bit further on those costs.

Mr Doogan —I am sorry, Senator, I am just reminded that the funding is in the current financial year and the next financial year, hopefully.

Senator KIRK —I have a further question in relation to the special leave applications that we were discussing earlier. You previously indicated that judges were considering dealing with some of these leave applications on the papers. I wondered whether or not there had been any movement in that direction at all?

Mr Doogan —There has been movement in the sense that the proposal has been put to the profession through the Law Council of Australia and the Australian Bar Association, and their views will be taken into account, I would expect this year.

Senator KIRK —Are you saying that there is a process that has been put into place, that there have been consultations seeking the opinions of these bodies?

Mr Doogan —Yes. Because both of those bodies are made up of constituent bodies spread around the country, it is their usual practice to then go back to each of the bar associations and law societies and to seek their views before producing a consolidated view which is referred back to the court.

Senator KIRK —What sort of time frame do you think we are looking at? Or is it too hard to judge?

Mr Doogan —I would think it would be this financial year.

Senator KIRK —Before June?

Mr Doogan —Yes. The matter will be dealt with and finalised this financial year.

Senator KIRK —Thanks.

CHAIR —Mr Doogan and Mr Howard, thank you very much for your assistance to the committee this morning. I am glad we were able to fit it into a timetable that worked for everybody, and I hope today and tomorrow are very successful for the High Court. The committee will continue with general questions at this point. We will start with Senator Ludwig.

Senator LUDWIG —I am not too sure which portfolio output my question might come under. The Attorney-General's Department has vehicles for SES officers, as I understand it. Is there a mechanism whereby people can take a car or not take a car or convert it to superannuation when they are close to their retirement? Has that option been taken up?

Mr Cornall —The first part of your question is whether SES officers can choose not to take a car and take cash in lieu. The answer to that is yes, that is the situation. The way we establish our remuneration arrangements for SES is that there are various payments, depending on the level, and they are entitled to a fully maintained vehicle for both business and private use. But, if they choose not to have a vehicle, there is a set figure for the cash-out of the vehicle and that is paid to them as salary in lieu of the use of the vehicle. I am not quite sure of the second part of your question.

Senator LUDWIG —If they can choose not to take the car, is there a standard value that that is made up of?

Mr Cornall —Yes, there is.

Senator LUDWIG —What is that?

Mr Cornall —I will have to get Mr Oliver to bring me up to date with the current figure.

Senator LUDWIG —I am happy for that portion of the question to be taken on notice so that he does not have to do that.

Mr Cornall —It is a figure that I do not have in my mind.

Senator LUDWIG —I appreciate that. So there is a set amount that is taken that can be included as salary.

Mr Cornall —Mr Oliver reminds me that it is $18,000.

Senator LUDWIG —And that $18,000 then becomes part of their annual wage?

Mr Cornall —It is part of their remuneration, yes.

Senator LUDWIG —Does that then go towards a defined benefit or an accumulation for their superannuation?

Mr Cornall —They will be a member of either the Public Sector Superannuation Scheme or the old Commonwealth Superannuation Scheme, and those schemes provide for the accumulation of a lump sum or a pension, and there is an entitlement for the officer to choose how the benefit is taken when they retire.

Senator LUDWIG —If they are in a defined benefit scheme, it would be a multiplication of their final average salary for a period before their retirement, and they could then work out the pensionable amount. That is my understanding of it, very simplistically.

Mr Cornall —That is my understanding as well.

Senator LUDWIG —If you were close to retirement you might choose the cash option at that point where the years kick in—sometimes it is three, five or seven, depending on what the defined benefit scheme allows for, in terms of multiplying your final average salary.

Mr Cornall —Yes.

Senator LUDWIG —I might not have that quite right. What I am trying to ascertain is how many salaried SES officers nearing retirement have chosen not to take a car but have taken a cash payment, which then increases their superannuation amount.

Mr Cornall —Under the Commonwealth employment arrangements a salary for superannuation is specified. That is not dependent on whether you take the cash payment or the car. The salary specified for super purposes is whatever that salary is.

Senator LUDWIG —So if you choose not to have a vehicle it does not increase your superannuation payout?

Mr Cornall —We have changed the arrangements for how we specify the superannuation salary for SES officers. I am not able to bring instantly to mind the details of that and I do not want to mislead the committee by answering your question incorrectly, but we do specify a salary for superannuation purposes and that is the salary which is used for the purpose of calculating superannuation entitlements and so forth.

Senator LUDWIG —So it is X amount. Is that for both defined benefit and accumulation?

Mr Cornall —It is for the purposes of the superannuation scheme, and how you take your benefits under the scheme is a matter between the superannuant and the trustee.

Senator LUDWIG —If you decide to take a cash payment will that affect your superannuation amount? Or can you then elect to pay that into your superannuation?

Mr Cornall —I keep coming back to the fact that there is a specified superannuation salary, irrespective of whether you take the cash or the car. That does not change, whether you do one or the other. You do have the option, under the PSS and I assume also under the CSS, to make payments in addition to the minimum payment that you are required to make, and that can therefore increase your accumulated benefit in the fund and have an effect on the lump sum benefit that you can take out of the fund as well. But these are quite complicated questions, and I have spent a lot of time trying to understand the Commonwealth PSS scheme. You need someone from Finance to explain the details to you.

Senator LUDWIG —So Finance is the department I should clarify these issues with?

Mr Cornall —ComSuper, which is part of the Department of Finance and Administration.

Senator LUDWIG —I am trying to ascertain—and I think we have done it to death—whether, by choosing cash rather than a car, you can increase your superannuation payment, which to my mind does not seem to be why a car is supposed to be provided or not provided. It is obviously a benefit of the employment sphere, not a post-retirement present.

Mr Cornall —The answer to the question is no, it does not. Your superannuation salary is a specified amount. Whether you take the cash or the car does not alter that. You can see the same thing in the secretary's determination from the Remuneration Tribunal. If you care to look at that, you will see there is a total remuneration but there is a basic salary for superannuation purposes, and that is the way those schemes work.

CHAIR —Are there any further general questions? Minister, I had indicated that we would move to output 1.4 at 11 o'clock, but in view of the time we will deal with that area now and then come back to the program as it is printed, if that is agreeable to you and Mr Cornall.

Senator Ellison —Yes, that is fine.

[9.44 a.m.]