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Thursday, 9 November 2000
Page: 22677


Mr ANDREWS (10:20 AM) —The Jurisdiction of Courts (Miscellaneous Amendments) Bill 2000 clarifies the jurisdiction of the Federal Court and the Federal Magistrates Service with respect to applications under the Administrative Decisions (Judicial Decisions) Review Act 1977 and the jurisdiction of the Federal Magistrates Service in matrimonial causes under the Family Law Act 1975. More specifically, it clarifies that the Federal Court has the jurisdiction to hear applications under the Administrative Decisions (Judicial Decisions) Review Act that are transferred to it by the Federal Magistrates Service, and the Federal Magistrates Service in turn has jurisdiction to hear such applications as are transferred by the Federal Court. The bill also clarifies that the Federal Magistrates Service has jurisdiction to hear matrimonial causes transferred to it by the Family Court.

The amendments regarding this jurisdiction were made by the Federal Magistrates Bill 1999 and the Federal Magistrates (Consequential Amendments) Bill 1999. The courts and the Law Council of Australia were consulted during the drafting of these bills. The bills were publicly available for over six months before they were passed by parliament and were the subject of scrutiny by the Senate Legal and Constitutional Legislation Committee which received over 20 submissions. No issue was raised with the government about the effectiveness of the conferral of this particular jurisdiction. However, recently, and prior to the introduction of this bill, it came to light that there might have been some issues about the effectiveness.

The government was advised that there was some slight uncertainty about the effectiveness of the conferral of the administrative review jurisdiction in proceedings which were transferred between the courts. The advice the government received was that although the conferral of the matrimonial causes jurisdiction on the Federal Magistrates Service in transferred proceedings is more likely than not to be effective, this is not entirely certain. Hence, the amendments in the bill before the Committee are being made purely to clarify these areas of jurisdiction for the avoidance of doubt in the future. However, the government does not wish there to be uncertainty about the effectiveness of judgments made in cases that the Federal Magistrates Service has already heard in these areas of its jurisdiction.

Whilst no applications under the Administrative Decisions (Judicial Review) Act have been transferred by the Federal Magistrates Service to the Federal Court, such applications have been transferred from the Federal Court to the Federal Magistrates Service, and matrimonial causes proceedings have been transferred from the Family Court to the Federal Magistrates Service. So, in order to avoid any doubt about the effectiveness of judgments made in these cases, the bill provides that any such judgments made without jurisdiction by the Federal Magistrates Service will have the effect of a valid decision. This approach has been adopted in the past to deal with possibly ineffective judgments, and the approach has been approved by the High Court.

Additionally, under the Trade Practices Act 1974, the Federal Magistrates Service can only award damages of up to a monetary limit of $200,000, or such other amount as is prescribed, in respect of proceedings instituted in the court. Whilst the intention was that this limitation apply to all trade practices proceedings before the Federal Magistrates Service, there was some doubt as to whether it applies to proceedings transferred to the Federal Magistrates Service by the Federal Court. The opportunity has therefore been taken in this bill to make an amendment to clarify this.

The other members who have contributed to this debate, notably the members for Barton, Bass and Capricornia, have taken the opportunity accorded by this bill to raise a range of issues unrelated specifically to what are fairly mechanical provisions in the bill in relation to the transfer of jurisdiction. They have taken the opportunity to raise other matters concerning the Family Court more generally, and the Federal Magistrates Service. Whilst the precise matters in the bill are merely seeking to ensure clarification by way of their nature, it is true that the Federal Magistrates Service and the Family Court remain matters of great importance to the government and members on the government side of the House.

I believe that the Federal Magistrates Service is something which we can be very proud of having initiated in this country and, contrary to some of the advice which has been proffered by members of the opposition, the Federal Magistrates Service is delivering real results into the Australian community. In just its first few months of operation the service has become an increasingly important part of the Australian justice system. To date, in the family law area alone, over 7,000 applications have been filed with the service, and in the non-family law area, over 500 applications have been filed. In addition, several hundred applications have been transferred from the Family Court and Federal Court to the service.

This is in the context of a long process of review of the way in which the Family Court is operated in Australia. The honourable member for Banks, the honourable the Attorney-General and I were members of the House of Representatives Legal and Constitutional Affairs Committee. We all know there has been a review of the way in which the Family Court has operated. There was a joint select committee of the parliament that looked into that, and there has been an ongoing process. One would expect this as a natural course, given that the Family Court of Australia was established back in 1975. Twenty-five years have passed and, therefore, one does need this ongoing review of that court, of the justice system generally, and of the way in which it delivers to the people of Australia.

One can recall that the purpose behind the Family Court at the time was to achieve a number of things. One was, as part of the implementation of a new system of family law replacing the old Matrimonial Causes Act 1959, to make access to the courts better and simpler in an area which contains and has surrounding it sometimes great personal and emotional trauma for the parties concerned, not the least of which are the children, with some 150,000 involved indirectly through their parents in Family Court proceedings each year. As well as bringing about better access, it was also to remove some of the undesirable aspects of the old matrimonial causes system and to simplify the process. What was propounded and what was proffered to the people of Australia back in 1974-75 was that this would be a simple system, that it would have a grassroots aspect to it, so there would be easy access to justice.

As a process of the reviews which have gone on—and I compliment the Attorney-General for having brought forward this Magistrates Court legislation for the federal system—I believe what we are doing in Australia is returning to some great extent to what was actually held out, to what the promise was, back in 1974-75: that there would be some immediate access to justice that would have some community involvement so far as this matter was concerned. Therefore, the objections, some of which have been raised by the members for Barton, Bass and Capricornia, to various aspects of this ought to be taken in the context of the historical background of what was being attempted, particularly in the Family Court, in 1974-75, the process of review that has gone on, and the commitment of the government to try and achieve access to justice in this area in a way which perhaps has been clouded by subsequent events and experience over the last 25 years.

I note that the Attorney is here and I am sure that he will have comments to make in relation to those speeches by the honourable members opposite that I have referred to. Rather than both of us address the same issue, it might be to the advantage of the House if the Attorney addresses those matters rather than I do. I just wanted to put it in that broad context—which I would have been able to do for the next 10 minutes if need be, but, given that the Attorney is here, that brief outline of the historical basis of the legislation will suffice. On that note, I am happy to indicate my support for the bill before the House and urge all honourable members to do likewise.