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Monday, 11 February 2013
Page: 818


Mr KEENAN (Stirling) (17:34): The Courts and Tribunals Legislation Amendment (Administration) Bill 2012 will change the administrative structures of the National Native Title Tribunal, the Federal Court, the Family Court and the Federal Magistrates Court. The specific structural changes proposed by the bill are the transfer of the National Native Title Tribunal's appropriation, staff and some of its administrative functions to the Federal Court; amendment to the Native Title Act 1993 to reflect the fact that the National Native Title Tribunal is no longer a statutory agency for the purposes of the Financial Management and Accountability Act 1997—it being subsumed into the Federal Court—and the formalisation of the merger of the administrative functions of the Family Court and the Federal Magistrates Court.

The bill implements recommendations of the Strategic Review of Small and Medium Agencies in the Attorney-General's portfolio, known as the Skehill review, which was publicly released in June 2012. The changes which affect the National Native Title Tribunal are probably inevitable as a result of the passage of the Native Title Amendment Bill 2009, which noted the primary adjudicative role of the Federal Court and sought to integrate the tribunal's alternative dispute resolution code with the court process. That bill had the coalition's support. As to the amendments affecting the Family Court and the Federal Magistrates Court, which has been changed to the Federal Circuit Court, the administrative merger occurred de facto in 2008 and 2009 in preparation for the government's planned abolition of the Federal Magistrates Court, which has now been abandoned.

The purpose to merge the administration of the Federal Magistrates Court with that of the Family Court had its genesis back in the days of the Rudd government, which sought to abolish the Federal Magistrates Court altogether and merge it into the Family Court. As we know, the initiative failed and the coalition policy was ultimately adopted by the immediate past Attorney-General, Ms Roxon. As the shadow Attorney-General, Senator Brandis announced during the 2010 election campaign:

One of the issues that has dogged this portfolio over the life of the Rudd-Gillard government is the fate of the Federal Magistrates Court. The Federal Magistrates Court was truly one of the success stories of the Howard government. It was established 1999 as a measure to enhance access to justice in the federal jurisdiction. Although it has jurisdiction over most matters arising under federal law, most of its work is in the family jurisdiction. The Labor government made a grave error of judgment when it sought to dismantle the Federal Magistrates Court. To deal with smaller cases quickly it is vital that there be a lower tier Commonwealth trial court. The coalition government will restore a second tier Commonwealth trial court to deal with smaller family, trade practices, industrial bankruptcy, tax and administrative law matters. It will be called the Federal Circuit Court. We expect it to become the principal trial court within the federal jurisdiction. Federal magistrates will be offered positions as judges of the Federal Circuit Court. The Federal Court of Australia and the Family Court will deal with the most complex trials.

That is a direct quote from the coalition policy.

The Federal Magistrates Court was established by the Howard government in 1999 in order to provide for timely, efficient and less formal adjudication of disputes in the federal jurisdiction. Since its establishment it has been very successful. In 2011-12 it finalised over 92,000 matters, which included family law, industrial, migration, admiralty, bankruptcy, administrative law and consumer protection. The court now deals with 85 per cent of all family law matters, up from 60 per cent in 2004. Eighty-three per cent of all applications filed are completed within six months, and 95 per cent within 12 months. It is a testament to the court's efficiency.

Despite this, the Rudd and Gillard governments have sought since 2008 to abolish the court. One of the first acts of the Rudd-Gillard government in the Attorney-General's portfolio was to commission the Semple review of the federal courts, which recommended that the Federal Magistrates Court be abolished and reconstituted as a separate lower division of the Family Court and the Federal Court. This plan, disclosure of which the government resisted throughout 2008, and most colourfully justified by reference to a dispute over biscuits in a tea room shared with the Family Court, was finally released in December of that year. The government accepted its recommendations in February 2009. However, these proposals received almost no support from any arm of the federal judiciary and none at all from federal magistrates, who themselves rightly feared that the culture of innovation and efficiency that it had built up to the benefit of all its stakeholders since its establishment would be lost in the more procedurally focused Family Court. The alternative proposal, the one represented by this bill, which the coalition announced in 2010, was widely reported to have the endorsement of the federal judiciary.

Last year the then Attorney-General conceded defeat and instead proposed that the court be maintained under a new name to reflect its expanded workload and jurisdiction. In doing so she has accepted the policy announced by the coalition in the 2010 election, including the very nomenclature the shadow Attorney-General proposed. The change of name which the coalition proposed and which the government has adopted is appropriate for two reasons. First, the Federal Magistrates Court is already a circuit court in the true sense of the word. It has 13 principal locations and 35 circuit locations throughout Australia. Circuit settings are regularly conducted in such locations as Broken Hill, Dubbo, Coffs Harbour, Alice Springs, Bundaberg, Ipswich, Maroochydore, Mount Gambier, Burnie, Ballarat, Mildura and Shepparton. In 2011-12 the court allocated approximately 145 weeks to its circuit program. This is an extremely valuable service allowing parties to have their matters heard and determined without the need to travel to major centres.

Second, having regard to the breadth and complexity and monetary limit of its jurisdiction, it now seems misleading to describe this body as a Magistrates Court. At its establishment it seemed an appropriate descriptor, inviting comparison with the quick and less formal state and territory magistrates. However the success of the model and the consequent expansion of its jurisdiction required a proper recognition of the work of its 61 judicial officers.

However—and this has always been the way for this government—there is a gap between rhetoric and reality. For 2011-12 the court reported an operating deficit of more than $3½ million. The court has reported ongoing pressure on its operational budget despite what it describes as 'significant initiatives' to reduce costs and generate efficiencies. It has been unable to manage its work on the funds that the government has provided to it without spasmodic emergency injections. On 14 December last year the Australian newspaper quoted the court's CEO, Mr Foster, as saying:

Over the past several years, the courts have been operating at a loss ...

Despite implementing many cost-cutting initiatives, the point had been reached where in order to balance the budget in 2012-13, it would no longer be possible to continue the provision of many existing services, such as maintenance of regional registries, circuits and the use of family reports in parenting cases.

Replacement of judicial officers could not be afforded without further impinging on other services.

In other words, what the government now recognises as the reason for the court's existence, its circuit program, was at risk as a result of the attrition of four years of a government seemingly hostile to its very existence.

Thankfully, the emergency funding has now been allocated, but this is no way to fund the judicial arm of government. The courts cannot be treated as a mere program to be funded or defunded depending on the way the political and budgetary whims are blowing. Senator Brandis wrote about this back in June 2012 when he said:

… all the federal courts have been running at a deficit and are projected to do so for the next four years.

The chief executives of the Family Court and the Federal Magistrates Court disclosed to the Senate Legal Affairs Estimates Committee last week that, in order to comply with Department of Finance stipulations that the courts bring their budgets back into balance, the already stressed services the courts provide will be cut back even further.

And in a move that will only make a bad situation worse, the budget announced increases in court filing fees—the very threshold of access to justice—by a total of $76.9 million over four years.

Incidentally, the description in the budget papers of this measure was penned in language of which Sir Humphrey would have been proud: 'The government will reform court fees to better reflect the capacity of different types of litigants to pay. The reforms will send more appropriate price signals to court users.'

And I believe that my distinguished colleague, the former Attorney-General, will be saying something more broadly about the use of the word 'reform' for such measures as these, and I would agree with him that that is a much overused word when you are talking about something that is just blatantly a price increase.

When you are increasing the price of the access to justice, then clearly that is not about enhancing that access to justice. To do this is really to proclaim to the world the Gillard government's deep indifference to freedom of information. Government senators used every procedural trick in the book to suppress production of the Skehill report, written by a former secretary of the Attorney-General's Department, which reads like a vivisector's guide to the future of the federal judiciary.

The Gillard government's attitude to accessible justice is to charge more and provide less. Not only does this make a mockery of the government's self-serving rhetoric; it reflects a more disturbing approach and a fundamental disrespect to the separation of powers. The courts are not an agency of the executive government and they should not be treated as such. They are a separate institution of government and they must be sufficiently resourced to perform their constitutional functions and preserve their constitutional integrity.

The coalition is deeply supportive of the work of the federal courts and their place within the Constitution of Australia. The work of the federal magistrates—or, as they shall soon be known, the judges of the Federal Circuit Court of Australia—has shown the value of the Howard government's vision of a court to provide the greatest possible access to justice in the federal jurisdiction.

As I have previously said, the CEO of the Family Court has also been the acting CEO of the Federal Magistrates Court since November 2008. Mr Foster has been examined in Senate estimates about the potential for conflict in the concurrent performance of these two roles, and he maintains that it has been working satisfactorily. However, both courts are operating in deficit and have been the recipients of urgent supplementary funding this year so that essential operations such as the circuit sittings that I mentioned previously can continue. In any environment where Mr Foster must consider when to rob Peter to pay Paul, a Senate committee inquiry will take the opportunity for more detailed consideration of the effectiveness of the joint administration and whether there is a sustainable funding model for these courts. That committee reports later on this month, and at that time the coalition will consider whether amendments are necessary. In the meantime, the coalition does not oppose the bill that we are discussing here today.

This bill has been referred, as I said, to the Senate Legal and Constitutional Affairs Legislation Committee. When that committee reports on 23 February, the coalition reserves the right to move amendments in the Senate based on what the committee findings might be. But, in the absence of that committee reporting at this stage, the opposition does support the passage of this bill through this chamber.