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
Thursday, 28 February 2013
Page: 1305


Senator BRANDIS (QueenslandDeputy Leader of the Opposition in the Senate) (13:33): This bill makes amendments consequent to the passage of legislation last year to reconstitute the Federal Magistrates Court as the Federal Circuit Court of Australia. The bill updates relevant references in legislation, consistent with the new name of the court and the change in title of federal magistrates to 'judge' or 'chief judge' as the case may be; makes bulk amendments to substitute 'Federal Circuit Court' or 'Federal Circuit Court of Australia' for 'Federal Magistrates Court' wherever it appears in the acts listed in schedule 2; and makes contingent amendments to a number of bills which are currently before parliament that make reference to the Federal Magistrates Court or to federal magistrates. Commencement of these contingent amendments will be subject to passage and commencement of those bills.

This is a bill which the coalition is happy to endorse because, as I pointed out in the debate on the previous bill, it puts into effect the coalition's policy announced at the 2010 election. On 13 August 2010, in the course of a debate with the former Attorney-General, Mr Robert McClelland, I announced:

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 in 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 law 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. A Coalition government will restore a second tier Commonwealth trial court to deal with smaller family law, trade practices, industrial, bankruptcy, tax and administrative law matters. It will be called the Federal Circuit Court.

That was the coalition's election commitment in 2010, happily delivered by the Gillard government in this bill.

The Federal Magistrates Court, to trace the history of the matter, was established by the Howard government in 1999 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 matters. The court now deals with 85 per cent of all family law matters, up from 60 per cent of all family law matters in 2004. Eighty-three per cent of all applications filed are completed within 6 months and 95 per cent are completed within 12 months, which is a testament to the efficiency of the court and the hard work of its members under the leadership of the Chief Federal Magistrate, Mr John Pascoe, and all the other federal magistrates.

Despite this impressive track record for swift, efficient and cost-effective delivery of justice, the Rudd and Gillard governments sought in 2008 to abolish the court. One of the first acts of the government within the Attorney-General's portfolio was to commission the Semple review of the federal courts, which recommended that the FMC be abolished and reconstituted as a separate lower division of the Family Court, with those federal magistrates who did not try Family Court work to be engaged as special masters of the Federal Court.

That plan, disclosure of which the Gillard government resisted throughout 2008, was finally publicly released in December of that year. The government accepted the recommendations in February 2009. However, the proposals received almost no support from any arm of the federal judiciary and none at all from the federal magistrates themselves, who rightly feared that the culture of innovation and efficiency that the court had built up to the benefit of all litigants since its establishment would be lost in the more procedurally focused Family Court.

The alternative proposal—the one which this bill represents and which the coalition announced in 2010—was widely reported to have the endorsement of the federal judiciary, as I can say, Mr Acting Deputy President Ludlam, from my own discussions with many officers of the federal judiciary at the time. Last year, the then Attorney-General, Ms Roxon, conceded defeat and instead proposed that the court be maintained under a new name to reflect its expanded workload and jurisdiction. As I said a moment ago, in doing so, she accepted the policy announced by the coalition at the 2010 election, including the very nomenclature which the coalition had proposed.

The name of the court, which the coalition proposed and which the government by this bill adopts, is appropriate for two reasons. Firstly, the Federal Magistrates Court is already a circuit court in the true sense of the word. It has 13 principal locations and registries and 35 circuit locations around Australia. Circuit sittings 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 judge-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. I am at pains to stress that, of the people who go to the Federal Magistrates Court, 85 per cent of their cases involve the more routine or mundane family law matters. They might be routine or mundane in a legal sense, but they are no less fraught and distressing for the people concerned. These are the everyday people of Australia who, through the end of a matrimonial relationship, need to have resort to a low-cost, swift, efficient arm of the federal judiciary, which this government proposed to take away from them. Secondly, having regard to the breadth, complexity and monetary limit of its jurisdiction, it now seems somewhat misleading to describe this court as a 'magistrates court'. At its establishment that seemed an appropriate descriptor involving comparison with the quick and less formal state and territory magistrates courts. However, the success of the model and the consequent expansion of its jurisdiction require the proper recognition of the work and the status of its 61 judicial officers.

Mr Acting Deputy President, as I noted in my remarks on the Courts and Tribunals Legislation Amendment (Administration) Bill a few minutes ago, the government's record on court administration is lamentable. It has been a study in fiasco and confusion. In 2011-12, the Federal Magistrates Court reported an operating deficit of $3.5 million. The court has reported ongoing pressure on its operating budget despite what it describes as 'Significant initiatives to reduce costs and generate efficiencies.' It has been unable to manage its work with the funds the government has provided without occasional sporadic emergency injections. In September last year, the Australian newspaper quoted the court's CEO, Mr Richard Foster, as saying:

Over the past several years, the courts have been operating at a loss. Despite implementing many cost-cutting initiatives, the point has 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 one of the principal reasons for the court's existence is that its circuit program was at risk as a result of the attrition of four years of a government seemingly hostile to the court's very existence. This is no way for the executive arm of government to treat the judiciary. It is worse than disrespectful; it is constitutionally inappropriate. Courts cannot be treated as a mere agency. What they do is not a mere program to be funded or defunded depending on the way the political and budgetary winds are blowing. As I said last year:

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—

in May of last year—

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.

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. As was revealed in estimates a fortnight ago, more than 70 per cent of that will go to consolidated revenue and not be reinvested in the courts.

The Gillard government's attitude to accessible justice is to charge more and to provide less. Not only does this make a mockery of the government's self-serving record about social inclusion and social justice; it reflects a more disturbing approach that reflects a fundamental disrespect for 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, as the members of those courts know, deeply in support of their work and of their place within the Constitution. 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 and wisdom of the Howard government's vision to provide for the greatest possible access to justice in the federal jurisdiction, just as this government's abandonment of its foolish intention to abolish that court and, instead, to embrace the coalition's proposal to elevate its status and recognise the importance of its constitutional function demonstrates the confusion with which the court's affairs have been deal with by this government. It is with pleasure that the coalition supports this adoption of its 2010 election policy.