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Monday, 11 February 2013
Page: 824


Mr RUDDOCK (Berowra) (17:59): I do not speak often in relation to these bills but I do intend to make some observations about the proposals before us. I note that the member who is on our side, the shadow minister who spoke before me, prefaced my concern about the use of the word 'reform' for what are often changes. I note that the word 'reform' is very loosely used. When I looked at some of the statements as to what was being intended in this legislation, that was brought home to me. I saw some observations before the Senate committee summarising what is being done on this occasion.

Schedule 1 of the bill formalises the implementation of native title institutional reforms—I would say 'changes'—which commenced with amendments to the Financial Management and Accountability Regulations 1997 from July last year. It folds the tribunal into the Federal Court as a statutory agency and makes consequential amendments to the government's financial and annual reporting frameworks. The amendments remove the legal risk and provide clarity for agencies and stakeholders. The amendments not only generate savings but result in a better alignment and allocation of functions and a clearer focus of increasing the rate of claims resolution. These legitimate legislative amendments are supported by administrative arrangements such as a memorandum of understanding between the agencies to enable the tribunal to continue performance functions in a way that is consistent with its status in the independent statutory authority.

I make mention of that because I do have enormous respect for Graham Neate, who was the President of the Native Title Tribunal. I saw the role that the body carried out over a long period as being positive. I saw it as being the specialised body. I must say I was troubled, when I was attorney, at the way in which in the Federal Court there was often a desire by judges who bring themselves to these matters—sometimes frequently but sometimes not so often—to want to appoint people that they thought might mediate, and they would not always go to the Native Title Tribunal, the specialist body. I do not know why that was always sought in that way. I tried to have an inquiry into the better way forward, and the advice that was given to me at that time, which I acted upon, was to require the courts to use the Native Title Tribunal. Graham Neate is reported as saying that the tribunal had several Indigenous staff members and had built up extensive experience in resolving native title claims and that he hoped that this knowledge would not be lost. I thought they were very appropriate observations and comments. I suspect there is a degree of trying to reinvent the wheel under the guise of reform, which can, I think, jeopardise the ability to get the full value that you can out of a body with that experience.

I noted what my colleague the member for Blair had to say about the difficulties in getting resolution of native title claims. My experience was with people who were involved in this area. The present High Court Chief Justice was involved with me, when he was a Federal Court judge, in looking at ways and means in which we could expedite consideration of these matters. One of the major problems with the large number of claims that had to be dealt with was the inadequate number of people with anthropological experience able to give advice to the states and to give advice to the applicants to enable matters to be progressed quickly. I do not know whether that has changed. I understand there were very few universities that were actually training anthropologists and producing that expertise. I know the desire to get these matters resolved and resolved quickly, but I do not think it is always the institutional arrangements which we are fiddling with. Often it is matters that we do not even give attention to. The need for anthropological expertise is something that I attach a great deal of importance to.

I note that the departmental officials commenting on these matters spoke of schedule 2 as amending the Family Law Act and the Magistrates Act:

… to ensure that these acts are compatible with the courts operating under shared administration with a single chief executive officer. The Family Court and the Federal Magistrates Court have been operating under shared administration, including a single chief executive officer, since 2009. The move to a shared administration was a joint decision taken by the two courts. Mr Skehill found that the shared administration arrangements have been a genuine success. As a result, he recommended that the previously proposed restructure of the Family Court and the Federal Magistrates Court should not proceed but that the shared administration arrangements be formalised.

That is what we are dealing with in relation to this legislation. The legislation, as the shadow minister said, is not opposed at this stage but there are Senate committee deliberations; there may be amendments that suggest themselves out of that which we are not foreclosing at this time.

I turn to the comments of the member for Blair because he is an experienced family law practitioner but he seemed to have a fond view of the Family Court under former Chief Justice Nicholson. He said that as a practitioner, but there are mixed views about the performance of the court involving practitioners. I think it has a lot to do with the way in which the court was first established.

I am going to tell you a little story about a former judge from Sydney, Ray Watson. My father taught him at Penrith High School. He was an adviser to Murphy as the Attorney-General in relation to the Family Court Act, and Ray Watson, I think, saw himself as the real architect. He has been unwell in recent times and is very fragile in a nursing home in my electorate. I fondly remember him giving some advice when I chaired a select committee reviewing the Family Law Act. He said I should go and see what happened in Alberta, Canada. There, I would find a Family Court that had court counsellors, and I would understand the model he had developed for our Family Court with court counsellors. He argued very strongly the case for the Family Court to be managing the process of trying to get independent advice on family circumstances through the court counselling model.

There was a magistrate in Sydney called Reg Bartley who ran the Children's Court, often dealing with family issues before they would become real issues before the Family Court. He would say to me: 'I can never get a counsellor from the Family Court because they hang onto them; they are their own. They have all the time to be able to use them and they'll use them fully, and we can't get access.'

I went to Canada and met Judge Marjorie Bowker of the Family Court of Alberta, and I discovered something: the Family Court of Alberta was the equivalent of our Children's Court of New South Wales. Divorce was not dealt with before the Family Court of Alberta: it was dealt with in the Court of Queen's Bench. I was surprised Ray Watson did not know all of this. When I came back it struck me: here is the most junior court, the Magistrates Court, dealing at a grassroots level with these issues that needed the help, and the Family Court was building up a bureaucracy of its own.

As a practitioner I was never one who would want to argue a case if it were possible to settle it. I regret that not all practitioners see it the same way. Some see these issues as matters that you should pursue until you have spent the last dollar that your client has. I do not think it does the profession much for its reputation.

For me, I wanted to see more practitioners who were trying to find alternative dispute mechanisms. I very strongly supported the setting up of the separate bodies to advise people on family issues and requiring people to get counselling before they even got into the court. In my view, if you were going to try and resolve an issue you needed to do it before people became entrenched. I think we do have some cultural problems in our family law system and I am not sure that the Family Court of Australia, which deals with a very small proportion of the case loads now, fully understands that. I think the complexity that has developed, the legalism that has been brought into family law disputes, is very troubling.

I very much disagree with the member for Blair in relation to the observations he made about the way in which the Magistrates Court has worked. I think it has been extraordinarily successful. You only need to look at the numbers of cases that are resolved before the Magistrates Court to understand that it has played a very significant role. It may well be that the Family Court has been so structured that it is only receiving the most complex of all the issues that the courts might have to deal with; it may be that those are the only ones that are getting before it. But, actually, when you look at the workloads you would be surprised: if you go into Sydney most of the matters are dealt with before the Family Court; if you get out into the suburbs they are being dealt with by the magistrates.

I think we have been greatly served and I think the magistrates do feel a little aggrieved that this tremendous load that they have assumed, which they have dealt with very successfully, has not been fully recognised. I think the renaming of the court as the Federal Circuit Court will help in maintaining that degree of commitment that the magistrates have brought to the process of dealing with family law issues.

I hope, in the way in which these issues are being dealt with, we are not seeing our institutions attacked for the purposes of delivering administrative savings because the government's priorities for expenditure are elsewhere. I saw some news reports today suggesting, for instance, that there has been a very significant reduction in numbers of Federal Court judges. It seems to me that the reduction in Federal Court judges is occurring in order to produce savings. It was interesting to me that the Chief Judge of the Federal Court—about to retire and be appointed as a member of the High Court of Australia—was simply drawing attention to the potential, if it continues, for the court and its standards to be diminished. I think that would be very unfortunate.

There have been some issues of conflict between the magistracy and the Family Court. I would like to commend all of our courts because I think the separation of powers and the quality of our justice are particularly outstanding. But I do not think the way in which the government is pursuing reforms simply for the sake of change, if it impacts adversely on these institutions, is in our national interest. I do not speak often in these matters, but I have enormous respect for the people that I dealt with when I was Attorney and I am troubled about some of the pressures that they have been placed under as the government is seeking to get reductions of expenditure through some of the mechanisms that we have seen, even introduced in this legislation, which we are not opposing.

The DEPUTY SPEAKER ( Mr Windsor ): I thank the Father of the House. I now call the member for Moreton.