Mrs DE-ANNE KELLY (5:35 PM) —I rise today to speak on the Federal Magistrates Bill 1999 and cognate bill. The creation of an entire new Federal Court, which this bill proposes, is not a step to be taken lightly. The Family Law Act 1975 created a specialist family court dealing with matters such as divorce, residence and contact in children's matters, property alteration and maintenance. The Federal Court of Australia Act 1976 created a federal court on which jurisdiction is conferred by a number of other Commonwealth statutes, including the Bankruptcy Act 1966 and the Trade Practices Act 1974. Both of these courts are superior courts.

This bill proposes the creation of a lower level federal court to be called the Federal Magistrates Court or the Federal Magistrates Service. Serious consideration of a Federal Magistrates Court can be traced back to the early 1990s. In 1992 a parliamentary joint select committee considered the matter in its inquiry into the administration and funding of the Family Court, and published its report in 1995 recommending specialist state magistrates be trained in and appointed to hear family law matters in outer suburban, provincial and particularly rural areas.

The Family Law Council published a report which considered ways and means of achieving improved access to family law. At that time, it made the very valid and important point that:

There is no point in having a superb system of justice which is fair in every way if it is inaccessible to all but the very rich. Equally there is no point in a readily accessible system of justice which provides justice that is so rough as to constitute no justice at all.

When the coalition came to government, the Attorney-General, the Hon. Daryl Williams QC, continued to progress the matter. He spoke of his and the government's concerns and intentions in October 1998 to the Third National Conference of the Family Court of Australia. The Attorney-General expressed particular concerns about delays and costs in Family Court proceedings and about delays in the Federal Court. He said the preference was for `a separate federal magistracy as the best way to ensure maximum flexibility and simplified procedures'.

On 8 December, the Attorney-General announced cabinet had given in principle approval to the creation of a federal magistracy to undertake less complex civil and family law matters, and his statement at that time bears repeating. He said:

With a less formal judicial culture and more streamlined procedures than those of the existing federal courts, a magistracy would also reduce costs for litigants because solicitors' expenses would be reduced, barristers are less likely to be briefed, reduced waiting times would lessen legal costs and costs incurred by litigants through lost time and wages, the magistracy would have a fixed costs regime which would mean more certainty as to the costs of litigation and would be welcomed by the parties including small business who are not as well resourced as others and access to magistrates in regional areas would reduce litigants' travel and associated expenses.

This bill, which was introduced in June, reflects and addresses all of those important concerns. From my perspective, one of the most important features will be the great benefit the new Federal Magistrates Court will provide to regional and rural Australia. While I understand the location of magistrates has not been settled, I am advised that they will go to centres—and, in particular, regional centres—where there is the biggest demand. Obviously, I would like to see the Attorney-General give consideration to areas such as Mackay—which, as he well knows, is the centre of a major regional area.

In total, 16 magistrates will be appointed in the first year, with eight due to be appointed in time to commence hearing cases in the first half of next year. I am particularly pleased about the fact that a federal magistrate will be expected to go out on circuit to the bush and to small country towns to give people such as those I represent far better access to cheap and efficient dispute resolution. A federal magistrate will be able to sit down and hear a case anywhere in Australia. He or she does not have to sit in a courthouse and could even convene the court in a community hall.

As well as this flexibility and practicality, federal magistrates will have access to videoconferencing and audioconferencing for people in more remote locations. This sort of facility is of particular importance to regional and rural Queensland, where parties to a case can sometimes live in different areas and be separated by considerable distances. These facilities will save many litigants considerable time and travel expenses.

I notice that the member for Brisbane talks about forum shopping. He goes on about the three little `c's. Let me tell you about the three big `C's in the current family law court. It is costly, cumbersome and combative. They are the three big `C's as far as my constituency is concerned. This new Federal Magistrates Court will provide a lower cost alternative for the determination of less complex federal disputes. It will be simpler, streamlined and more user friendly. Delays will be shorter and the often intimidating and strictly formal legal culture of the superior courts will be refreshingly absent.

It has been suggested that the appointment of magistrates within the Family Court—as opposed to this independent lower court structure—might be preferable. Fortunately, the government has rejected this argument, and I endorse the Attorney-General's approach entirely. The Chief Justice of the Family Court said in July this year that, while his court did not disagree with the need for a summary family law jurisdiction, it was concerned by the government's proposal to establish a separate administrative structure. He advocated—as we would expect—the appointment of magistrates within the framework of the Family Court.

I represent about 135,000 citizens and have the opportunity, as you and many other members of parliament do, to hear their concerns on a day-by-day basis. The Family Court does not have a record which could be described as user friendly. It does not have the streamlined procedures that are outlined for the Federal Magistrates Court. The views of the Chief Justice of the Family Court—while, no doubt, sincere—could be seen by the less charitable as empire building. I will have a good deal more to say about dealings with the Family Court and its administration in an address I intend to make later in the week.

By stark comparison and significantly, the Chief Justice of the Federal Court, Chief Justice Black, considers that the establishment of a new and separate court is essential to developing the sort of culture and the sorts of practices that will enable smaller and less complex cases to be dealt with in a cheaper and more efficient way. Family Court matters are a source of major complaint in my daily electorate work. It is, therefore, not surprising that the Australian Law Reform Commission is currently looking at issues relating to the civil justice system, including the way the Family Court operates.

The commission recently published a fascinating discussion paper in which it devoted some 74 pages to analysing the Family Court and the way in which the Family Court manages the cases that come before it. That discussion paper makes the point that, during the consultations the Law Reform Commission held, practitioners and litigants were very critical of the case management practices of the Family Court. I do not doubt—as many others do—that the judges and staff of the Family Court are dedicated, hardworking and professional men and women of absolute integrity. It is the culture that is cumbersome and outdated, and the procedures are causing problems.

The Law Reform Commission has suggested 11 draft recommendations on how these procedures can be modernised. Of particular interest is proposal 11.8, which suggests that the court should introduce `a case management system in which each case is allocated to particular judges and registrars who sequentially take responsibility for the allocated cases from commencement to finalisation'.

It is of concern to me that, under the current system of case management in the Family Court, judges do not have any contact with a particular matter until the matter is listed for trial. Prior to that point, a case may have a number of registrars dealing with it. There is a lot to be said for the Law Reform Commission's view. It states:

Continuous oversight of a case by one court officer with knowledge of previous appearances should promote consistent decision making and appropriate enforcement of compliance with directions and rules.

It is only when you contemplate the existing procedure of the Family Law Court—which the Law Reform Commission has found to be clearly lacking in focus and efficiency—that the comments and criticisms of the Chief Justice of the Family Court are given a real context. When, in July, he made known his views about the government's proposals for a Federal Magistrates Court, he defended his court's lamentable procedures as a `closely integrated system'. I repeat that the Law Reform Commission has come up with 11 draft recommendations to modernise and upgrade procedures in what its chief presiding officer describes as a `closely integrated system'.

In May this year, prior to the introduction of this bill, the shadow Attorney-General, on behalf of the opposition, said that, while the ALP would not oppose the establishment of the magistracy, it believed:

It can be established in a more efficient and effective manner interconnected with the existing court structures.

At that time, the shadow minister seemed more concerned about the adequacy of the resources that would be provided to the new court than almost anything else. I notice now that the concerns of the opposition have shifted. However, at that time, it was a drearily predictable criticism from an opposition which seems to take the view that almost anything can be done if there is an adequate level of funding—meaning the government's allocation multiplied by a random number.

Somewhat at odds with this alleged concern about resources, the shadow minister suggested that a better approach might be to give:

. . . suitable State and Territory magistrates joint Federal and State Commissions and ensure that they have the training and support necessary to get the job done.

It is extraordinary that the opposition can, on the one hand, criticise the resources which might or might not be allocated to the proposed new court before any resources have been announced and, on the other hand, propose that federal magistrates should be only part-time jugglers of their responsibilities and their demanding tasks as state and territory magistrates. Surely, if the government did accept this opposition proposal, it would be guilty of trying to set up an entire new court system on the cheap.

Before the opposition becomes too enthusiastic about the views of the Chief Justice of the Family Court, it might consider a submission made by the Attorney-General's Department in April 1995, when Labor was in government, and their thoughts on the magistracy issue. This submission was made to the joint select committee I referred to in my opening remarks. The departmental submission on the Family Court structure and how it might work with magistrates appointed as a direct part of that court framework—the option the Family Court has always wanted— questioned whether a structure consisting of judges and magistrates would work when the senior judge structure had not worked.

In fact, when the then Labor Attorney-General asked the Law Reform Commission to review the current adversarial nature of litigation on 29 November 1995, he conceded that this:

. . . arose from concerns that legal proceedings in Australia are excessively adversarial and that this produces undue delay, cost and unfairness in litigation.

Thus, the Labor Attorney-General at that time had obvious concerns about the entire court system, including the Family Court. It is obvious that the then minister's view of the Family Court structure was a million miles away from the view of that court's chief justice who believed, and presumably still believes, it is—as I have already quoted—a `closely integrated system'.

All of this is important when we consider how the new Federal Magistrates Court will operate. This new court will be able to consider the following: applications for divorce; applications concerning spousal maintenance; family property disputes where the property in dispute is worth less than $300,000 or property disputes worth more than this with the consent of the parties; parenting orders providing for the residence of the child or children with the parties' consent; parenting orders providing for other matters such as contact, maintenance and specific issues with or without the parties' consent; enforcement of orders made by either the Family Court or the Federal Magistrates Court; all location and recovery orders regarding children, as well as warrants for the apprehension or detention of a child; and determination of parentage and recovery of child-bearing expenses.

Undeniably, these are very wide and significant powers and responsibilities. Given that the Federal Magistrates Court will be far less formal and will be able to go directly or by videoconferencing facilities to people in rural and regional areas, for the very first time there is the real prospect of less anguish as a result of these decisions. Divorce, particularly when children are involved, is a painful and very emotional experience for both parties. I am sure every member of parliament has had the experience of having in their office one or the other parent who is distressed because of the breakdown of a relationship and the hurt and unhappiness caused by matters of child custody. No court system in the world could ever guarantee a perfect outcome for all parties every time—and it would be unfair to expect that they could—but this new system is infinitely better than the existing system.

I am also pleased that the fees charged by the new court will be fixed by regulation. While this fee structure is yet to be finalised, I am advised that the fees envisaged will generally be about half those charged in the existing courts. I have heard of some extraordinary payments made by people on very modest means to pursue matters through the Family Court system. To be able to cut those costs in half would be a significant achievement. If the Attorney-General can ensure that that is the outcome of this new court then battlers in rural and regional Australia are going to have access at possibly half the cost. That is very welcome news.

I commend the government and particularly the Attorney-General for this bill. As we know, there is considerable mistrust and even fear of the legal process among ordinary Australians, who simply do not understand it in many cases and who often are—or, at least in some cases, believe they are—incapable of seeking redress via the courts because of the cost. With a considerable jurisdiction and with simple and streamlined procedures, I am certain that the Federal Magistrates Court will not just bring affordable justice to many but enhance the reputation of the entire court system in Australia. I am immensely pleased that it is the coalition which is going to bring more affordable justice to those who battle in rural and regional Australia. I thoroughly commend this bill to the House.