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Wednesday, 5 April 2000
Page: 15314


Mr PRICE (5:37 PM) —I wish to add my comments to those already made in the debate on the Jurisdiction of Courts Legislation Amendment Bill 2000. I apologise to the House that I will not give as wide ranging a contribution as my learned colleague the honourable member for Lowe. Like you, Mr Deputy Speaker Andrews, I am particularly interested in the family law implications of the re Wakim case.

I thought you might have sympathy if I, in a most circumspect way, was highly critical of the High Court. This is now the second decision that I think has very tragic consequences. The first one was the Brandy decision. I have read very clearly the judgment of the learned High Court judges. Whilst I think there is some wriggle room in the distinction between administrative and judicial decisions, as outlined in their reasons, the practical implication of the Brandy decision was tragic. It was tragic because it ruled out in Commonwealth sphere of jurisdiction the possibility of setting up no-frills tribunals. It means that, if you want to set up a tribunal in the federal sphere, you need to appoint a judge to preside over that tribunal. The states have tried to address this issue of people being unable to access justice because they cannot afford it by setting up a series of tribunals which, I believe, work very well. That, in the main, precludes the legal profession, but that may be one of its reasons for success. I think that is a virtue, not a deficiency.

Now we have re Wakim. I acknowledge my indebtedness to Mark Tapley, from the Parliamentary Library, who has provided some useful material. This case was decided by the High Court on 17 June. It declared the cross-vesting scheme component of the Corporations Law to be constitutionally invalid. By a majority of six to one, the High Court ruled that the Constitution, in sections 75, 76 and 77, exhaustively sets out the matters that a federal court can deal with. The decision has implications for the administration of family law.

It is my understanding that those who have examined closely the decision believe the High Court has made a very technical decision in its determination—more is the pity. The Family Court is a federal court created under chapter III of the Constitution. The Jurisdiction of Courts (Cross-Vesting) Act 1987, amongst other matters, purports to vest the power of state supreme courts in the Family Court. However, in re Wakim the High Court held that the cross-vesting legislation is invalid, to the extent that it purports to allow federal courts to exercise states' jurisdictions.

The Commonwealth does not have exclusive power in relation to family law. Section 51 of the Constitution provides that:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

(xxi) Marriage:

(xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants

Thus, Mr Deputy Speaker Andrews—and I know this is well known to you so I apologise—the parliament has been able to make laws governing such things as child custody and access as part of legislation relating to divorce and matrimonial causes. The power to settle the property of parties to a marriage is justified as an implied incidental power attached to section 51(xxii). Broadly speaking, where there is no connection to the marriage or divorce power, family law is the responsibility of the states. Historically, the main areas of state responsibility have been in relation to exnuptial children and the division of property of de facto couples.

Between 1986 and 1990, New South Wales, Victoria, Queensland, South Australia and Tasmania referred their powers over guardianship, custody and access to and maintenance of exnuptial children to the Commonwealth. As a result of the cross-vesting scheme and the state referral of power, the Family Court could hear disputes between couples, whether they be married or de facto, in relation to property and/or the custody of children. However, as a result of Wakim, the Family Court will have no jurisdiction to entertain proceedings in relation to the property of a de facto couple. De facto couples will have to go to a Supreme Court to deal with the property issues and the Family Court for child custody orders. The family court has also lost the jurisdiction to award damages for assault. The cross-vesting legislation enabled the Family Court to award damages to victims of domestic violence in the process of settling property disputes. Now such victims will be required to initiate a separate action for damages in the state courts.

There is nothing in the High Court's decision which prevents the Commonwealth from conferring jurisdiction on the states. In fact, section 77(iii) of the Constitution expressly authorises such action. Therefore, state supreme courts can continue to exercise jurisdiction in respect of all family law matters. A problem may arise, however, in relation to appeals. Section 7(4) of the various state jurisdiction of courts cross-vesting acts and section 7(5) of the Commonwealth act require any appeal involving a matter arising under the Family Law Act to be determined by the full court of the Family Court. It is still possible that the full court may then be unable to determine any state law aspect of the appeal by virtue of an absence of cross-vesting.

This is, I think, a most unfortunate decision, but perhaps, in family law at least, there is a light at the end of the tunnel. You may recall that from time to time I have advocated that we need to allow people to make a choice of approaching a no-frills family tribunal. The only way we could do this prior to Wakim was to set it up in Western Australia where the family court is still a state Family Court of Western Australia and comes under the state jurisdiction.

If honourable members are happy that family law matters involving assault or exnuptials use a mixture of jurisdictions—that is, that we should force people to go to a state court for certain matters and the Family Court for others—I have no avenue to advance my case. But it may be the case that we ought to really rethink our whole approach to family law. Maybe re Wakim is the opportunity to say whether the Family Court has been a success in its 20 years of operation. Or perhaps, in recognition of so much outrage in the community about the Family Court and the criticisms of its Rolls Royce nature and its approach of one size fits all, we should be starting to contemplate whether or not we can have a unified system of family law where the operation and administration of family law become a matter for state courts. We have heard the expression `cooperative federalism', usually from those on the other side of the House, and I think it is something we can embrace on our side of the House. But this would overcome the implications of the Wakim case. I think there is a certain efficiency about it. We might even want to, as has been suggested by the Australian Law Reform Commission if we were to go down that path, contemplate giving family courts other matters to consider as well as family law—maybe care, maybe protection. It is something that I hope to investigate quite closely over the next few months and then come back with a firm proposal.

I think there is a much greater likelihood of us being able to make a decision like that than us contemplating a referendum. I know the Attorney-General has suggested that a referendum may be the only real and long-term solution to this problem, but we all know how difficult it is to get referendums up, even as non-controversial as this one mostly surely would be. If we are to put our faith in a referendum being the solution, that solution may be many years away. I just wonder, when the learned High Court judges were contemplating this decision, whether they contemplated what the repercussions of their decision would be and how the parliament and the people of Australia who need to respond to the decision would be in a position to react. Any decision that is brought down that contemplates referendums as the final arbiter and solution to these difficulties is a very naive approach.

If we did transfer these powers to the states, we could also address the issue so that Supreme Courts would not have to handle family law matters. We could be like New Zealand, where rather than have a superior court handle the matter a district court could handle the matter.

To those on the Labor side who constantly advocate serious inertia in family law and Family Court matters, let me say that I was staggered to learn from the Australian Law Reform Commission that the income of the average client before the Family Court was $26,000. I mean no offence to you, Mr Deputy Speaker—we have known each other too long—but I suspect the client of the Family Court is more likely to live in my electorate than your electorate. I recognise that there are some prominent families, even billionaire families like the Morans, who like to slug family matters out in the courts and who would even use the Family Court. But when you get a figure that says that the average income is $26,000, you really understand that we are forcing ordinary people through this mincer of a court and maze of a court. I say that because I think something like 20 per cent of the people visit the court on a matter on about five instances, and the percentages go up. I apologise but the exact figures have just slipped my mind. It is not a once-only visit is the point I am trying to make.

You can actually introduce a brand new mechanism into family law—that is, the no-frills tribunal. You do not go there with solicitors and you do not go there with judges. Under state constitutions, you do not even have to have legal people as presiding officers of a tribunal, but you can have processes where people are allowed to get their angst out of their system and they are able to sit down and talk about their problems, and the process of resolving their problems is either conciliation or, when the parties cannot be brought back together, arbitration.

I know some would say, `But look what this government has done in mediation.' I think the more choices we give people the better. But we have to recognise that some processes do not suit some people. Mediation is making a minimal impact in my electorate, yet I would concede that there are other electorates that could take full advantage of mediation. What I can say is that the ordinary people in my electorate—they are proud to be called ordinary people—would take advantage of a no-frills family tribunal. It is not a substitute for the state Family Court or District Court. It does not replace them. You still have those mechanisms. You still have magistrates. But this provides a new avenue where people are not going to be spending thousands of dollars on legal fees and still feel that they are not getting justice. Mr Deputy Speaker Andrews, you know and I know that we have to find better ways of dealing with family law, that we really do need to reform family law. What I am saying is that re Wakim is an opportunity to rethink the revolutionary reforms that were supported by both sides in 1975 and whether now it is better to revisit the issue of still preserving a unified system but having the states do the administration of justice.

I am in the process of having a private member's bill drawn up in relation to family law, and that is to remove section 121 from the act. Under the provisions of section 121, as you know from when we took evidence in Perth from journalists, it is impossible to report a case in the papers. Members of this House have to believe that in our justice system either we need the full scrutiny of the media, that it needs to be open, or we follow a star chamber model. We have a rich history of the star chamber model from the United Kingdom. I have said time and time again that I think the greatest victim of section 121 is the Family Court itself. There is no way that it would be able to get away with some of the actions or statements made by learned judges were the press reporting. It gives rise to the question of why there is this injunction against publication of names of parties to a family law matter.

The private member's bill I am proposing does not prohibit names being suppressed. But like in any other court in the land, except the Children's Court—and here the children are not the guilty party, by the way; the children are, I think, in a way the victims—any party before the court is free to make an application for suppression of names as decided on merit. It is not decided on whether you are a member of parliament or a judge or Mr Moran or a little Aussie battler like Kerry Jones. The court would then be required to make judgments for suppression based on merits. I say that we need to lift the iron curtain of the family law court—we have to open the curtain.


Mr Hockey —On a point of order: as much as I can understand the genuineness of the comments of the member for Chifley, may I urge him not to reflect on individuals who do not have the opportunity to defend themselves in the parliament.


Mr PRICE —I am suitably admonished.


Mr DEPUTY SPEAKER (Mr Andrews)—I was about to say that there is no point of order.


Mr PRICE —It is a serious point I am trying to make—that is, in other courts we allow judges to make the decisions. I say: let them make the decisions. The irony of this private member's bill is that there may be no change whatsoever, but at least we are making the decision on a consistent basis rather than having blanket legislation that prohibits it. This is a very small change, I admit, but we need to begin the process of reform and change to the family law court. Maybe Wakim, for those members who are concerned—and I know there are a lot concerned about the family law court—is the opportunity to take a fresh look at it, to find a fresh direction, maybe to make sure that the states are the ones that administer family law within a unified Australian system of family law.