Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Wednesday, 7 December 2005
Page: 3


Senator ELLISON (Minister for Justice and Customs) (9:34 AM) —I table the explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

FISHERIES LEGISLATION AMENDMENT (COOPERATIVE FISHERIES ARRANGEMENTS AND OTHER MATTERS) BILL 2005

The Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 (the bill) reflects the Australian Government’s ongoing commitment to the long-term sustainable use and development of Australia’s fisheries resources.

The amendments to the Fisheries Management Act 1991 (FMA) and the Fisheries Administration Act 1991 (FAA) (the Fisheries Acts) seek to ensure that fisheries resources and the marine environment are managed in an efficient and ecologically sustainable manner. The bill will provide more certainty for key stakeholders regarding the Commonwealth’s fisheries management objectives. It will also allow cooperative fisheries management arrangements between Australian jurisdictions to operate with more flexibility and efficiency.

This bill contains amendments to the FMA and the FAA to clarify the meaning of two important objectives underpinning Commonwealth fisheries decision-making.

Firstly, the Australian Government intends to amend the Fisheries Acts to clarify the meaning of the existing ‘economic efficiency’ objective.

The wording of the existing economic efficiency objective will be changed from “maximising economic efficiency in the exploitation of fisheries resources” to “maximising the net economic returns to the Australian community from the management of Australian fisheries

The new wording restates the existing objective in more simple terms that are easier for people to understand.

The underlying meaning of the economic efficiency objective will not change. That is, AFMA will still be obliged to manage the effort and catch of a fishery to maximise the difference, at a fishery level, between total revenue and total costs, taking into account the impact of current catches on future stock levels.

Beyond clarifying this issue, the Government does not expect the amendments to the fisheries management objectives to have any impact on how the Commonwealth fisheries are managed.

It is important to note that the change to the wording of the objective should not be interpreted as a change to the Australian Government’s policy position on resource rent taxes. The Government’s position on this issue has not changed.

In addition to clarifying the meaning of the economic efficiency objective, the bill amends the Fisheries Acts to insert principles of ecologically sustainable development (ESD), consistent with those in the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

This fulfils a commitment made in Outcome 3 of the 2003 Commonwealth Fisheries Policy Review. The Review recognised that, while the Fisheries Acts require AFMA to ensure the Commonwealth fisheries are managed in a way that is consistent with the principles of ESD, the legislation currently provides no guidance on how this objective should be interpreted.

Including the principles of ESD in the Fisheries Acts provides AFMA with additional guidance on how its decision must attempt to balance the ‘triple bottom line’ of economic, environmental and social outcomes. Having the principles consistent with those in the EPBC Act will provide a consistent framework for decisions across the Government that affect the marine environment. It will also provide AFMA with guidance on how its decisions relating to the management of Commonwealth fisheries must attempt to balance the “triple bottom line” of economic, environmental and social outcomes for fisheries.

Fisheries are Australia’s fifth largest food producing industry—worth more than $2.2 billion to our economy every year and are critical to the well-being of a number of Australia’s coastal communities. It is important that our fisheries are well managed to ensure they remain productive and sustainable. This is best accomplished when a fishery is managed consistently throughout its constituent species range. If we can achieve this goal, Mr Speaker, then our fisheries, and accordingly the commercial fishing industry, will be given a solid base on which to grow and prosper.

To achieve this goal, the bill also contains administrative amendments to improve the operation and efficiency of the Offshore Constitutional Settlement (OCS) fisheries arrangements and facilitate cooperative fisheries management between State, Northern Territory (NT) and Australian Governments.

The Offshore Constitutional Settlement itself is the jurisdictional arrangement between the Commonwealth and States/Northern Territory (NT) which sets out responsibilities for all of the following: offshore fisheries, mining, shipping and navigation and crimes at sea. The OCS provides for State/NT laws to apply inside three nautical miles and for Commonwealth laws to apply from three to 200 nautical miles.

The FMA and reciprocal State/NT legislation provide the legal and administrative basis for the Commonwealth and States/NT to make an arrangement for a fishery that overrides the existing jurisdictional lines set out by the OCS. The intention of these OCS fisheries arrangements is to provide for the holistic management of fisheries—recognising that fisheries do not align with boundaries drawn on maps. Already, more than 50 active fisheries arrangements have been agreed between the Commonwealth, the States and the NT. The FMA refers to these as “arrangements” but the term “OCS” is used colloquially.

The 2003 Commonwealth Fisheries Policy Review identified inadequacies with the current OCS fisheries arrangements. The Review highlighted that there is a general lack of consistency and effective cooperation on the management of some fish stocks straddling Commonwealth, State and the NT jurisdictions.

The amendments to the FMA and FAA address the concerns raised in the Review and will allow the Commonwealth, States and NT to align their jurisdictions with natural fisheries boundaries—ensuring that the holistic and rational management of fisheries is possible. The bill contains amendments that enable the Government to adapt the OCS fisheries arrangements to reflect improved understanding of fish stocks and their dynamics, contemporary management issues and provide flexibility for cooperative agreements between the State/ NT and Australian Governments.

Specifically, the bill seeks to address the concerns raised in the Review by allowing Governments to amend OCS fisheries arrangements. The bill will provide a broad, express power in the FMA for the government to amend existing and future OCS fisheries arrangements. This addresses the primary deficiency in the current legislation, Mr Speaker. At present, if we wish to correct any errors, clarify ambiguities or vary jurisdiction in an OCS fisheries arrangement, the original instrument must be terminated and an entirely new agreement created. This process impacts management plans, permits and other instruments which are established under an OCS fisheries arrangement. It is also inefficient, being time and resource intensive.

The ability to change OCS fisheries arrangements is critical if we are to ensure that fisheries arrangements are able to be kept current, accurate and accord with developments in fisheries management.

This bill also provides a broad, express power in the FMA to change existing and future OCS fisheries arrangements. The bill amends the FMA to give the powers to create and terminate OCS fisheries arrangements, which currently rest with the Governor-General and State/Northern Territory Governors, to Commonwealth and State/Northern Territory Ministers. Approval through the Governor-General and State/Northern Territory Governors is considered to be a formality and creates an additional administrative step.

Aside from the administrative amendments to OCS fisheries arrangements, the bill introduces a new and innovative option for the management of fisheries resources by all the Commonwealth and State/NT Governments. At present, the FMA limits the legal jurisdiction of cooperative fisheries arrangements which involve the Commonwealth and more than one State to being managed under Commonwealth law. In practice, this model is restrictive as there will be multi-jurisdictional arrangements where it is most appropriate, and desired by all parties, to apply State laws.

The bill addresses this limitation by allowing regional fisheries arrangements. Regional fisheries arrangements will be similar to existing Joint Authority arrangements in that they will allow the Commonwealth and one or more States to enter into a single OCS arrangement for a fishery. However, regional management can be distinguished from Joint Authority management in two important ways. Firstly, State laws could be applied under an arrangement involving the Commonwealth and more than one State. Secondly, regional management would allow more than one law to be applied in a fishery under a single OCS. This will work in practice by defining the areas to which each law would apply, with these areas most likely flanking each other but not overlapping. This option provides for greater flexibility for cooperative management arrangements and the ability to rationalise existing OCS fisheries arrangements.

Australia’s fishing industry will benefit from the amendments to OCS fisheries arrangements as they will provide for better and more flexible management of Australia’s important fisheries resources.

In summary, the bill strengthens the Government’s ability to ensure that Australia’s fisheries and marine resources are managed in an ecologically sustainable and efficient manner. The bill will also instil more flexibility and efficiency into the cooperative fisheries management arrangements between the Commonwealth, State and NT governments by improving the operation of the OCS fisheries arrangements.


JURISDICTION OF COURTS (FAMILY LAW) BILL 2005

This bill will increase the jurisdiction of the Magistrates Court of Western Australia so that it can deal with the same matters in relation to family law and child support, and have the same appeal structure, as the Federal Magistrates Court.

This bill provides for more efficient arrangements for the Western Australian community in relation to family law and child support disputes. The bill will allow the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia to deal with a broader range of family law and child support matters. This means that Western Australians will now have a quicker, cheaper and simpler option in relation to litigation in family law and child support matters, similar to that provided by the Federal Magistrates Court for litigants in such matters in the rest of Australia.

The reforms will also free up valuable resources in the Family Court of Western Australia, allowing that court to hear more complex matters, in the same way as the Federal Magistrates Court, in its equivalent jurisdiction, allows the Family Court of Australia to concentrate on more complex and longer family law and child support matters.

These amendments originate from a review completed in early 2003 of the workload and resources of the Family Court of Western Australia, carried out by the Commonwealth Attorney-General’s Department, in consultation with the Western Australian Department of Justice and the Family Court of Western Australia.

The Review found that the limited jurisdiction of the Perth magistrates in relation to family law and child support matters meant that the Family Court of Western Australia judges were hearing matters that would be more suitable for magistrate determination. This is an inefficient use of valuable judicial resources.

In the rest of Australia, many of these matters would be dealt with by the Federal Magistrates Court. However, the Federal Magistrates Court does not exercise family law and child support jurisdiction in Western Australia.

Western Australia is in a unique position in relation to its family courts, as it is the only state to have a state Family Court, the Family Court of Western Australia, which exercises the jurisdiction that outside Western Australia is exercised by the Family Court of Australia. In Perth, the only court of summary jurisdiction that exercises family law and child support jurisdiction is the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

In order to ensure the more efficient handling of family law matters in Western Australia and optimise the use of judicial resources, the Review recommended that the Family Law Act 1975, the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, be amended to give the Perth Court of Petty Sessions the same jurisdiction and appeal structure as the Federal Magistrates Court. The Perth Court of Petty Sessions has now been amalgamated into the Magistrates Court of Western Australia.

These amendments complement efforts by the Western Australian Government to reform its lower courts, including the establishment of the Magistrates Court of Western Australia, which commenced on 2 May 2005.

A ‘Family Law Magistrate of Western Australia’ will be defined as a person who holds office concurrently as a magistrate under the Magistrates Court Act 2004 of Western Australia and as the Principal Registrar, or as a Registrar, of the Family Court of Western Australia. This reflects the judicial structure of the courts in Western Australia, where specialist family law magistrates/registrars hold appointments as Magistrates of the Magistrates Court of Western Australia and as Registrars of the Family Court of Western Australia.

In relation to appeals, the Review recommended that appeals should from the Perth Court of Petty Sessions, like appeals from Federal Magistrates in family law matters, go directly to the Appeal Division of the Family Court of Australia. Prior to these amendments, appeals could be brought from the Perth magistrates to the Family Court of Western Australia and from there to the Family Court. This effectively provided an extra layer of appeal in contrast to the situation elsewhere in Australia.

Under Commonwealth family law and child support legislation, appeals from decisions of federal magistrates are heard by the Full Court of the Family Court, unless the Chief Judge exercises a discretion to allow appeals to be heard by a single judge. If heard by a single judge this is an exercise of the appellate jurisdiction of the court and it is not possible to appeal from such a decision to the Full Court. Any further appeal will be to the High Court, by leave.

Appeals in these matters from the decisions of Perth Family Law Magistrates will now go straight to the Family Court of Australia, in the same way as appeals from decisions of Federal Magistrates. This acknowledges that Perth magistrates are specialists in family law matters and so there should be a more restricted right of appeal from their decisions.

In the same way as the Federal Magistrates Court is able to ease the workload of the Family Court and the Federal Court, it is anticipated that the extended jurisdiction for the Magistrates Court of Western Australia constituted by a Family Law Magistrate will help to ease the workload of the Family Court of Western Australia, allowing that court to concentrate on more difficult and time-consuming matters.

By matching the jurisdiction with that of the Federal Magistrates Court in these matters, the intention of the bill is to provide Western Australians with enhanced access to the justice system according to their needs and within their means.

The reforms will reinforce the Government’s intention of aligning court resources and jurisdiction as efficiently as possible and place Western Australia in the same position as the rest of Australia in relation to these matters.

I commend this bill.


JURISDICTION OF THE FEDERAL MAGISTRATES COURT LEGISLATION AMENDMENT BILL 2005

This bill amends the Trade Practices Act 1974, the Family Law Act 1975, the Federal Court of Australia Act 1976, the Admiralty Act 1988 and the Child Support (Registration and Collection) Act 1988 to confer new jurisdiction on the Federal Magistrates Court.

The Federal Magistrates Court, which commenced hearing cases in July 2000, is intended to provide a quicker, cheaper and simpler option for litigants and to enable both the Federal Court and the Family Court to concentrate on more complex and longer matters.

A review of the Federal Magistrates Court’s first two years of operation was carried out in 2002-03. The Review concluded that the Court was making a valuable contribution to an improved federal civil justice system.

The Review recommended that consideration be given to conferring on the Court concurrent jurisdiction with lower level State courts in trade practices matters. It also recommended that the Court be given jurisdiction to hear any civil matter remitted from the Federal or Family Court in which the Federal Magistrates Court does not otherwise have jurisdiction. This bill implements those recommendations.

There are many matters that come before Commonwealth courts that are less complex and do not need to be dealt with by superior court judges. The Government continues to consider proposals for new jurisdiction that may be appropriate for the Federal Magistrates Court. This bill implements a number of such proposals in addition to those recommended by the Review.

The Review’s recommendation that the Government consider additional trade practices jurisdiction for the Federal Magistrates Court followed the release in August 2001 of a consultation paper issued jointly by the Attorney-General’s Department and the Treasury. The consultation paper included proposals that the Federal Magistrates Court be given additional jurisdiction under the Trade Practices Act.

In March 2004, the Senate Economic References Committee report on The Effectiveness of the Trade Practices Act 1974 in Protecting Small Business also recommended that the jurisdiction of the Federal Magistrate’s Court under the Trade Practices Act be extended. The Committee believed that the Court would provide a more accessible forum for small business to take action against companies that engage in unconscionable conduct and parties in breach of prescribed industry codes. In June 2004, the Government accepted the recommendation that the Federal Magistrates Court’s jurisdiction should be extended to enable it to consider proceedings relating to Parts IVA and IVB of the Trade Practices Act.

The Court currently has some jurisdiction in relation to consumer protection matters under the Trade Practices Act. This bill contains an amendment to extend the Court’s consumer protection jurisdiction to pyramid selling claims and claims involving manufacturers and importers of goods. It also confers new jurisdiction in relation to claims about defective goods, unconscionable conduct and contraventions of prescribed industry codes.

The proposed amendments also increase the monetary limit on awards of damages by the Federal Magistrates Court under the Trade Practices Act from $200,000 to $750,000. This will make available to more litigants a simpler and more accessible forum for instituting proceedings.

The Family Court and the Federal Court may already transfer proceedings to the Federal Magistrates Court. However, a proceeding can only be transferred if the Federal Magistrates Court already has jurisdiction in relation to the matter that is the subject of the proceeding being transferred. The bill allows for the transfer of matters in which the Federal Magistrates Court does not otherwise have jurisdiction. This amendment implements the recommendation of the FMC Review which I referred to earlier. The Federal and Family Courts must continue to have regard to the existing factors they take into account when transferring a proceeding. Those factors include the interests of the administration of justice and the resources of the Federal Magistrates Court. The Government expects few matters to be transferred under this new provision. However, the transfer of appropriate matters will ensure that matters are heard in the most appropriate court.

The amendments to the Admiralty Act would confer jurisdiction on the Federal Magistrates Court in relation to all in personam actions under the Act (these are actions enforceable against the defendant personally), and confer jurisdiction in in rem actions (actions enforceable against a ship, freight or cargo) remitted from the Federal Court or a State Supreme Court. The conferral of this jurisdiction will give litigants a simpler and more accessible forum for redress in admiralty matters. The jurisdiction is also appropriate for the Federal Magistrates Court as State and Territory lower level courts already possess this jurisdiction.

The Child Support (Registration and Collection) Act allows for an aggrieved person to appeal to the Federal Court against the making of a departure prohibition order. This is an order that essentially prevents a person from departing Australia where they have an outstanding child support liability and certain other conditions are satisfied. The bill confers the same jurisdiction on the Federal Magistrates Court as is currently possessed by the Federal Court. As the Child Support (Registration and Collection) Act already confers jurisdiction on the Federal Magistrates Court in other matters, the proposed amendments merely extend that jurisdiction to include the ability to hear appeals against departure prohibition orders. There are no operational or policy reasons why the Court’s jurisdiction should not be so extended, as these appeals do not generally raise any complex factual or legal issues.

The Federal Magistrates Court was established because of the need for a lower level Commonwealth court which could handle less complex federal matters more efficiently and effectively. As was the case when the Federal Magistrates Court was first established, the Government is keen to ensure that all Australians and all Australian businesses are provided with suitable access to the justice system according to their needs and within their means. This bill contributes to achieving the goal of a more accessible and flexible civil justice system.

I commend this bill.

Ordered that further consideration of the second reading of these bills be adjourned to the first day of the next period of sittings, in accordance with standing order 111.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.