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Thursday, 28 February 2013
Page: 1300


Senator BRANDIS (QueenslandDeputy Leader of the Opposition in the Senate) (13:08): The purpose of this bill is to 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 are: firstly, the transfer of the National Native Title Tribunal's appropriations, staff and some of its administrative functions to the Federal Court; the amendment to the Native Title Act to reflect the fact that the National Native Title Tribunal is no longer a statutory agency for the purposes of the FMA Act, having been subsumed into the Federal Court; and, thirdly, the formalisation of the merger of the administrative functions of the Family Court and the Federal Magistrates Court. The government anticipates that the structural changes will achieve $4.75 million in savings each year from 2012-13, for total savings of $90 million over the forward estimates.

The bill implements the recommendations of the Strategic review of small and medium agencies within the Attorney-General's Portfolio, the Skehill review, which was publicly released in June 2012 and informally released by me some time before.

The changes affecting the National Native Title Tribunal were inevitable as a result of the passage of the Native Title Amendment Bill 2009, which gave effect to the primary adjudicative role of the Federal Court and sought to integrate the tribunal's alternative dispute resolution role with the court's processes.

As to the amendments affecting the Family Court and the Federal Magistrates Court, which will shortly be renamed the Federal Circuit Court of Australia following the adoption by the government of a policy the opposition took to the 2010 election, the administrative merger occurred de facto in 2008 and 2009 at a time when the government planned to abolish the Federal Magistrates Court. That plan, I am pleased to say, has since been abandoned. The government's policy concerning the Federal Magistrates Court has been a fiasco, misconceived from its inception and characterised by false starts and half measures which culminated with the humiliating backdown by the former Attorney-General, Ms Roxon, early last year and the wholesale adoption of the coalition's policy which had theretofore been vigorously opposed by the government.

Indicative of these false starts and half measures, the CEO of the Family Court, Richard Foster, has been the acting CEO of the Federal Magistrates Court since November 2008—perhaps the longest acting appointment in the history of the Commonwealth of Australia. Mr Foster was examined about the potential for conflict in the concurrent performance of these two functions over several rounds of Senate estimates. He maintained that the arrangement had been working satisfactorily. However, both courts are now operating in deficit and have been the recipients of urgent supplementary funding this year so that essential operations such as FMC circuit sittings were able to continue. In these circumstances, Mr Foster has inevitably been forced to juggle the competing interests of the two courts and it is apparent that the question of when to rob Peter to pay Paul arises not infrequently.

The government's solution, if it can be called that, is to impose massive increases in court fees, of which only 30 per cent of the proceeds are to be applied to the courts with the remainder pocketed towards the achievement of the surplus that never was. As I said at the time, the increase in court fees, of which more than 70 per cent goes into consolidated revenue rather than being returned to the courts, is in reality yet another new and stealthily imposed tax by the Gillard government—new or increased tax No. 28.

I am sorry to inform the Senate that this litany of indecision and incompetence does not end there. In fact, it continues into the heart of this bill. At Senate estimates earlier this month, the Legal and Constitutional Affairs Legislation Committee heard that this bill is yet another half measure. On 18 October last year—and bear in mind that this bill was introduced into the House of Representatives on 31 October and today is the last day of February—the Chief Justice of the Family Court and the Chief Federal Magistrate, Mr Pascoe, wrote to the Attorney-General's Department a letter in the following terms. These are the heads of two of the four Commonwealth courts: the heads of jurisdiction of the Family Court and the Federal Magistrates Court. This is what they jointly said:

After consultation with the Attorney-General's Department, the courts settled and agreed upon a model which provided for a separate agency to be responsible for their combined administration. The model had the virtue that it provided for a transparent and independent agency with one CEO. This model allowed for the existing situation to continue—that is, where the CEO of the agency is also the CEO for both courts. It also provided for other arrangements at a future time, whereby the courts could have separate CEOs—that is, principal registrars—who were responsible for judicial administration as distinct from the work of the agency. This would align all federal courts other than the High Court.

The present draft—that is, the draft of this bill—does not reflect that agreement, and the Chief Justice of the Family Court and the Chief Federal Magistrate have pointed this out. Whilst understanding the need to have legislation in place for the 2013-14 year, the Chief Justice of the Family Court and the Chief Federal Magistrate remain hopeful that further legislation can be introduced as soon as practicable that reflects the agreement reached between the courts.

The opposition supports the passage of this bill because it is necessary to regularise the longstanding, anomalous position of Mr Foster as the CEO of one court, the Family Court, and the acting CEO of the other federal court concerned, the Federal Magistrates Court, but it is an incomplete solution. It is urgent that this legislation be carried, but our support for this bill should not be understood to represent satisfaction with, or confidence, in the manner in which the government has conducted the administrative integration of these two courts. On the contrary, the two heads of jurisdiction—both courts, of course, established under Chapter III of the Constitution and exercising the judicial power of the Commonwealth—took the trouble in October of last year to write to the government to say that this legislation does not reflect the agreement reached on these matters. That is an appalling situation, and, as their honours said in the letter from which I have quoted, 'further legislation will be needed and needed urgently to reflect the agreement reached between the heads of jurisdiction'.

What was the government's response to this letter from the heads of the two jurisdictions concerned? It will astonish you, Mr Acting Deputy President. It certainly astonished me when I asked this question at Senate estimates a fortnight ago that the letter was not even acknowledged. It was not even acknowledged. Now, that is worse than bad process; it is worse than mere discourtesy. When the two heads of jurisdiction of one organ of government, the Commonwealth judiciary, write to the responsible minister of the other organ of government, the executive government, and say that the bill proposed to be introduced into the third arm of government, the parliament, does not reflect the agreement reached and is not satisfactory to them, that is a profoundly disturbing event. When a matter of that gravity is not even acknowledged, let alone addressed, by the government, then that takes incompetence beyond the bounds of the ordinary level of incompetence, if I may put it that way, that we have seen from this government. I suspect Ms Roxon at the time was too busy with her social engineering to bother.

In any event, I am relieved to say that the department is now at least speaking to their honours about their courts' concerns, but it must be asked how this legislation came to be approved by the cabinet and introduced into the parliament with the government's full knowledge that it did not reflect in full the agreement reached between the courts as to their shared administration and communicated to the government. The department's justification for proceeding in the face of the advice of the two heads of jurisdiction is that Mr Foster's position needs to be regularised and, as I said a moment ago, the opposition accepts that. Mr Foster's position has needed to be regularised since 2008—it is now five years since the government started tinkering with these two federal courts. I should say that these two courts are the courts in which the lion's share of Commonwealth cases are dealt with within the federal judiciary. The High Court deals with a relatively small number of very important cases each year and the Federal Court deals with a much larger volume of trial and appellant work, but the vast majority of cases invoking the federal judiciary are cases in the Family Court's jurisdiction and in the Federal Magistrates Court's jurisdiction.

To leave this matter unsatisfactorily attended to for five years—in effect, throughout the entire life of the Rudd and Gillard governments—and still not satisfactorily addressed in this bill has resulted in nothing but turmoil in those jurisdictions for the life of this government. It is only now that it sees fit, after years of pressure from the opposition—and, if I may say so, from me on behalf of the opposition in Senate estimates—to regularise Mr Foster's position, but it fails to reflect the agreement reached between the courts. There will have to be the dedication of more resources towards drafting and further amending legislation and location on the legislative program for that legislation before the expiry of the 44th Parliament. As honourable Senators know, the Senate only has five more sitting weeks before the announced date of the election on 14 September and the House of Representatives has only seven more sitting weeks. Given this government's truly heroic record of indecision and bungling, it may well be that the responsibility for cleaning up this mess—a mess that has its genesis early in the life of the Rudd government in the 43rd Parliament—will not be completed until the 45th Parliament. Our courts and the people who need to take their disputes and their matrimonial affairs to those court to be regularised certainly deserve to have been treated a lot better than that.