Mr KERR (11:35 AM) —All of us will have an opportunity to speak in the House of Representatives on the large international issue that is facing Australia—the looming war—so I will not address that matter today, although plainly it is in the forefront of everyone's mind as they come before whichever chamber of this parliament. Instead I want to talk about some issues that relate specifically to my electorate and to concerns expressed to me by my constituents in areas that I believe warrant the attention of this parliament and the government.

The first issue I want to raise relates to growing concern that we do not have in place proper mechanisms to enable the complaints of those who are disaffected by long delays or difficulties in judicial proceedings to be heard and determined in an effective way. I, first of all those who might rise to speak in this house, regard as the most precious of our constitutional freedoms the fact that we have an independent and respected judiciary. That said, it is important to recognise that no human institution will ever be a perfect one and there will be instances of failure within the courts and tribunals as with all other institutions. Redress is an issue which has concerned many disappointed litigants. I don't mean those litigants disappointed by results; litigation is of its nature a process where one side often is disappointed because they lose. The kinds of matters I am speaking about are instances where there are delays, where there are discourtesies, where situations arise which ought not arise within an effective and fully functional judicial system.

I raise this matter because, over recent months, it has become plain to me that there is substantial concern amongst a large number of practitioners in my own state of Tasmania about delays in the Family Court. By mentioning this fact I certainly do not wish to take the parliament into any of the specifics. It would be unfair to those who have raised these concerns with me and it would also be substantially unfair to the judicial officers who are concerned, because I am not in a position to determine whether or not those complaints are well founded in each particular instance. All I will say, however, is that there is substantial concern and it has been expressed not by a single practitioner but by many and by a large number of constituents. That being the case it raises the issue of how we address such matters.

There is, of course, a constitutional way to address those matters. It is open for this parliament, by an address of both houses, to remove a judge who is unfit to serve. But such matters are exceptional in their nature, they are extremely controversial and they are simply not appropriate for instances where the deficiency might be one of protracted delay in particular matters or a series of matters, or where the matter might be better dealt with by counselling of the judge or finding some other mechanism of addressing a deficiency in conduct which might amount to, for example, rudeness in an instance. I am not making the suggestion that all those instances have been the subject of complaints that have been addressed to me. The complaints that have been addressed to me have related to excessive delay. The question is how do we address these matters?

When the Keating government was in office, former Attorney-General Michael Lavarch and I as justice minister spoke of establishing judicial charters within all courts. That is—recognising that it is not for the parliament or for the executive to step in and decide such matters because it would compromise the independence of courts—it was appropriate, nonetheless, for the executive to work with the courts towards developing appropriate mechanisms that would enable such complaints to be effectively addressed. The idea of a judicial charter is for each court to establish benchmarks for performance standards and to establish within the courts appropriate forums where complaints of breaches in those benchmarks could be made with no prejudice to parties that were advancing them. That is a very important point because, whether fair or otherwise, there is a sense that a complaint made in the course of proceedings to the chief justice or other officers of a court may indeed prejudice the manner in which a proceeding is being determined. That is an unfair view but nonetheless it is held, particularly by litigants, and one can understand that apprehension when there are no transparent complaint procedures in place.

A court charter process would establish within each court a framework where the court would publish performance standards. For example, it would say that after filings of proceedings an initial hearing to work through interlocutory stages would be heard and would be set down within a particular time frame. It would say that within filing of the certificate of readiness, or whatever documentation completes the paperwork in a particular court, hearing time would be provided within a particular framework. It would also indicate that after the conclusion of argument judgment would be handed down within a particular framework. These would only be guidelines, because plainly there are going to be cases where the complexity of those cases and the circumstances warrant greater than normal time being given to consideration of those complexities. But there ought to be an ordinary rule of thumb guideline which anyone can advert to to see the way in which proceedings should be determined. There also ought to be a mechanism for a person who feels that those guidelines are not being complied with to be able to have that matter dealt with in an effective way within the court system, fully respecting the independence of the judiciary.

I say this because I think our confidence in institutions depends on their capacity to accept that not all criticism directed against them is malicious. Indeed, part of their strength is their capacity to respond to proper concerns, which are addressed by the profession and by individuals who come before these institutions for the disposition of their matters. I know that most judges are fully determined to do all they can to deal with proceedings expeditiously and I know that there have been steps taken by the establishment of judicial institutes designed to encourage effective conduct within the courts. Those processes have the support of the chief justices of all the courts, but we have yet to establish effective mechanisms to deal with these instances. There needs to be some intermediate way of dealing with deficiencies that would never warrant an address of both houses of this parliament to remove a judge. Such a method is required which would enable instances to be addressed within the judicial system where a particular judicial officer does not meet those benchmarks. Hopefully they would be addressed as well as counselled and remedied. Also, those processes would need to be available and transparent to our public.

In this regard, the other remedy that currently seems available to those who feel they are suffering unwarranted and unconscionable delays is to take proceedings to the High Court of Australia for mandamus, directing that a decision be made and that judges, who are the officials of the courts, do the duty conferred upon them by the parliament and by their office. Again, that remedy is so exceptional that I am not aware of it having ever been resorted to—it is there as a reserve, but it should not be the kind of mechanism we need when these instances can be better addressed through transparent court charters that the courts themselves work to enforce.

It would obviously need a degree of collegiality within a court. Within each court the judges themselves are, properly, fiercely protective of their own individual independence as well as of the institutional independence of the court. They would not surrender that to any of their fellow judges, and nor should they. However, we are not talking about the decisional elements of a case. We are not talking about how a case is decided, or its outcome. We are talking about process issues, and there I think the courts are as accountable to the communities they serve as anyone else is. The responsibility that courts have to give efficiency and courtesy in the discharge of their functions is no less great than anyone else's. Their independence is conferred to preserve their objectivity so that they will not be influenced in any way by any process that might interfere with the best exercise of their judgment as to the merits or otherwise of any particular case. I have written to the Attorney-General on this subject in somewhat greater detail than I am going into in the House, but I thought I would take this opportunity to reinforce my concern by addressing this matter in the Main Committee today. I do regard it as one of substantial concern in my own jurisdiction of Tasmania.

The second issue I want to raise concerns the Minister for Communications, Information Technology and the Arts. It is the issue of the licensing of the community radio station Cadence FM. Cadence FM was a small community broadcaster operating out of fairly primitive accommodation—basically, the transmitting facilities were run out of a domestic house. Cadence FM had a small and dedicated niche audience. It particularly served those that most broadcasters, including community broadcasters, do not serve. It served the aged, the handicapped and a number of other community groups, giving them an opportunity to present programming that was not available more broadly and to direct that to that niche audience. It also broadcast a lot of general community information, regularly interviewing aldermen and public officers and, in the lead-up to every election, offering the opportunity for extended interviews with all political candidates from every side. In that way, it played a small but important part in the life of the city of Hobart.

It is a great sadness of mine that Cadence FM has had its license removed recently. That license has now been conferred on a radio station that is being run out of the University of Tasmania. Students undertaking programs on that station become accredited as part of their media studies program. I think that university station is a damn good new radio station, and I have no dispute with its being conferred a licence. The problem is that the lack of intervention by the ABA and the minister has seen this play out as a zero sum game. The licensing of the new broadcaster was by way of competition, and the new winner only gained a licence as a result of the loss of Cadence FM's broadcasting licence. That was unnecessary. It was a stupid, intolerant, bloody-minded and quite unjustifiable outcome.

The university based radio station made submissions that it did not want to see Cadence FM lose its licence. When it was forced into a position where it was in competition with Cadence FM, naturally it went for the throat. The two radio stations argued their cases in the public domain, and now the enmity between people who should be of goodwill is tearing decent Tasmanians apart. I am not suggesting that every Tasmanian is overwhelmed by this debate; it involves only handfuls of Tasmanians, but those handfuls feel passionately. They are entitled to have their views listened to and given greater respect, but the ABA and the minister have chosen not to do that.

There is no technical reason why two licences could not exist. Unlike Sydney or Melbourne where the frequencies may be limited, in Hobart there is no plausible justification for controlling and limiting the number of community broadcasters for reasons of spectrum. There is plenty of spectrum. Having another broadcaster would not interfere with anyone else's broadcasting entitlement. We have now reached what I think is an absurd position, where a small, dedicated, community minded radio station has been driven out of business and is forced to litigate in the courts to test the procedural validity of the licensing program. If it wins that litigation the outcome will be that the university radio station will lose its licence, and the whole process will have to be gone through again.

I have written to the ABA and to the minister saying, in effect, `You are mad. You are ripping people apart unnecessarily. Why don't you do the sensible thing: stop all this defensiveness of past conduct—the court proceedings and the like—and simply get on with the job that you are supposed to do, which is to allow those who are not represented in the commercial domain—who are not able to get licences for commercial broadcasting and do not want to broadcast other than to particular niche markets as non-commercial free-to-air broadcasters—an opportunity to do the task that the licensing system was designed to implement?' Thus far, I have found the responses to be incomprehensibly unhelpful. The minister refers the matter back to the ABA. The ABA says that it will be for the courts to decide. Now their lawyers are seeking costs. Who are they seeking costs against in relation to proceedings that are partly on foot but not fully developed? They are seeking costs against people who run community broadcasting on a shoestring basis!

This is one silly mess. For the life of me, I cannot understand why somebody does not just bring the ABA into a room and say quietly to them, `Can't you fix this up? You've got plenty of spectrum. You've got a small broadcaster, Cadence FM, that had a niche audience.' I have tabled petitions from 2,000 constituents seeking re-establishment of Cadence FM's licence. It probably only had 3,000 or 4,000 listeners, tops. Maybe on an average day it had only 200, 300 or 400 people listening to it, but those are people I have met. I have met the elderly who listened to it. I have talked to them. I have met the people who suffer from disabilities and who used the service. They now do not have the effective resource that they relied on. The university has a good station; let us keep that. Why this had to be resolved in a zero sum game, where one must win and one must lose, is beyond me. Sometimes politics works that way, but good administration need not. (Time expired)