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Wednesday, 1 March 2006
Page: 20

Senator LUDWIG (11:05 AM) —The Jurisdiction of the Federal Magistrates Court Legislation Amendment Bill 2005 [2006] will amend several acts, with the effect of extending the jurisdiction of the Federal Magistrates Court. The jurisdiction of the Federal Magistrates Court would be extended for certain trade practices matters, any federal matters remitted from the family courts, several admiralty law matters and certain child support matters. These are sensible changes which will improve the flexibility and efficiency of the federal judiciary.

Labor are pleased today to be supporting this bill. However, we do have one serious criticism of this bill, and that is that it has taken too limited an approach to extending the Federal Magistrates Court’s jurisdiction over matters arising under the Trade Practices Act. The provisions in schedule 1 extending the Federal Magistrates Court’s jurisdiction over the Trade Practices Act matters will be a boon to small business and consumers, as the Federal Magistrates Court has lower costs than the Federal Court. This follows a recommendation of the Senate Economics References Committee report on the effectiveness of the Trade Practices Act 1974 in protecting small business, as the Minister for Justice and Customs noted in his second reading speech.

However, the minister did not mention that the government has chosen to accept only part of that recommendation. It has refused to accept the recommendation that the Federal Magistrates Court have jurisdiction over matters arising under sections 46 and 46A of the Trade Practices Act—those relating to the misuse of market power. Instead, the government has limited the extended Federal Magistrates Court jurisdiction to matters involving unconscionable conduct, industry codes, pyramid selling and actions against the manufacturers and importers of goods and defective goods. While that is good, the gap that has been left is a serious gap. Small businesses clearly do need protection from the misuse of market power. But it is exactly those businesses that are deterred by the higher costs involved in Federal Court litigation compared to the costs involved in the Federal Magistrates Court. Labor will be moving amendments during the committee stage to address this gap. Labor does, however, support the remainder of the bill.

Schedule 2 will give the federal and family courts the option to remit any matters within their jurisdiction to the Federal Magistrates Court. This will give those courts more flexibility as to how they manage their workloads. Schedule 3 would amend the Admiralty Act to give the Federal Magistrates Court jurisdiction over in personam maritime claims or in rem claims where they have been remitted by the Federal Court or a state Supreme Court. This will effectively give the Federal Magistrates Court an equivalent jurisdiction to that held by the state and territory lower courts. Schedule 4 will give the Federal Magistrates Court jurisdiction to hear appeals against departure prohibition orders made by the Child Support Agency. It is appropriate that appellants against these orders have access to cheaper and quicker forums such as the Federal Magistrates Court.

Although Labor support these changes, we do note that the government has not included in this bill some other opportunities to extend the jurisdiction of the Federal Magistrates Court. Early last year we were told that the government was planning to extend the jurisdiction of the FMC to include certain consumer protection and insolvency matters arising under the ASIC Act and the Corporations Act respectively. This is what has been proposed in the exposure draft circulated back in 2004. One might ask: where have those amendments gone? Why have consumers and creditors had to wait for so long? It will be interesting to hear the contribution from the government as to the reasons that those matters were not progressed in the exposure draft.

Similarly, we see nothing here coming out of the Advisory Council on Intellectual Property’s report on extending the Federal Magistrates Court’s jurisdiction to cover patent, trademark and design matters. The report came out in late 2003. It is now 2006, and you have to ask: has the issue been put in the too-hard basket? The government have had the opportunity to bring legislation forward since 2003. They could have taken the opportunity to include it with this bill. As I indicated earlier, they could also have used the ASIC Act and the Corporations Act, but that fell off the table. Labor will continue to monitor these issues, and we look forward to seeing some government action on these matters soon. Perhaps the government in their contribution today might be able to indicate when that is likely to be.

Lastly, it might be noted that the workload of the Federal Magistrates Court will increase as a result of this bill. We hope that the government is actively monitoring the Federal Magistrates Court’s performance to ensure that it is able to meet not only this increase in its current resources but also its current workload and future predicted workload. The Federal Magistrates Court did receive an increase in resources in the last budget to help pay for increased family law work, but this bill adds jurisdiction well beyond family law. Labor will be closely watching this area and monitoring the ability of the government to respond positively to the workload of the Federal Magistrates Court. Of course, if these reforms are to be meaningful and the Federal Magistrates Court is to fulfil its promise of being a cheaper, more accessible forum, then it needs, and will continue to need, to be properly resourced. That was the promise given by the Attorney-General—that it would continue to be a cheaper and more accessible forum. It is up to the Attorney-General to live up to that promise.

It is clear that the funding of the federal judiciary needs urgent government attention. The Productivity Commission recently found that the Federal Court’s expenditure per case finalised had increased by $5,197 to $16,767 between 2003-04 and 2004-05. We were a bit surprised to find at additional estimates that the Attorney-General’s Department seemed quite unconcerned about this, simply saying that it may talk to the court about this issue. It is disappointing to see such a response from government over such critical issues. Labor appreciates that the court must be responsible for the administration of its finances, but the government always has responsibility for assessing and meeting the overall costs of providing justice—and this includes making sure it is allocating resources appropriately across all federal courts.

This bill will lighten the load of the Federal Court in terms of sheer numbers of cases and increase the load of the Federal Magistrates Court. This necessarily does have resource implications, and we expect more concern and government action over this issue. That was evident at additional estimates. The Federal Magistrates Court should be and continue to be a quicker, cheaper forum for less complex matters, but we cannot let it develop into simply an overworked poor cousin of the Federal Court. This is not in the interests of small business, consumers, families or the others whom the Federal Magistrates Court serves. With those comments, I commend the bill.