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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
23/02/2009
ATTORNEY-GENERAL’S PORTFOLIO
Federal Magistrates Court

CHAIR —I welcome representatives from the Federal Magistrates Court. Senator Barnett, do you have questions?

Senator BARNETT —Yes. Hello, Mr Foster; you have been very busy!

Mr R Foster —I think I have been stumped!

Senator BARNETT —You have advised us that you were appointed in November as the Acting CEO. Are you adequately fulfilling your responsibilities with the two hats, the two functions, that you have? Do you have adequate resources to function properly?

Mr R Foster —Whether I am doing it adequately is I guess a question that should be asked of others, but answering in my own defence I would say yes, I am. In relation to potential conflicts of interest—if that is what the question was about—I would have to say that I am familiar with working in an environment where I have several masters. I come from a state system where I have responsibilities to a chief justice, a chief judge, a chief magistrate and other jurisdictional heads, so I am used to the balancing act of providing resources and advice to different jurisdictional heads in different courts. I find myself in a similar position now. Putting aside the structure of the courts, it is a similar responsibility. Do we have enough resources? I guess anyone would say we never have enough resources, but we also had to live in the real world. In relation to the corporate work that we are doing, the Family Court has basically taken on the work of the Federal Magistrates Court without any additional resources. It is doing the work with its existing resources. A number of us now have dual responsibilities. I think we are moving the agenda forward. I feel reasonably comfortable that I am doing a reasonable job in both courts.

Senator BARNETT —How does that work from a budgeting perspective? You have obviously had a budget for the 2008-09 year to employ certain people to do certain functions and now we have had a transfer of the CFO, the human relations manager and a whole range of other functions that you advised the committee of earlier. Is the budget that would otherwise have been expended in that area now a saving for the court?

Mr R Foster —No, the budget is still there. It is only the function that has been transferred to the Family Court of Australia. There are still two separate courts. The budgets that existed as at 1 July are still the budgets of the two separate courts. There will be a requirement to have two sets of financial reports. They are completely separate. They are just being operated by Mr Harriott.

Senator BARNETT —How does that work? If you have Mr Harriott, for example, who was here a few moments ago, as the Family Court Chief Financial Officer and now you are the Acting Chief Financial Officer for the Federal Magistrates Court and you have two budgets for a chief financial officer, surely you have a saving of one budget.

Mr R Foster —There is not a saving of one budget, but there is a saving overall with this transfer of function of about $700,000 recurrent as from next year.

Senator BARNETT —From?

Mr R Foster —There is $700,000 in savings to the Federal Magistrates Court budget. There have been a number of people who have left the court. There have been some costs in relation to redundancies. Once they have been cleared away, ongoing there is about $700,000 in recurrent savings by running the business the way we are running it now.

Senator BARNETT —So you are saying from the 2009-10 year?

Mr R Foster —Some time through the 2009-10 year.

Senator BARNETT —Are there any other functions that you have not advised that have been transferred to the Family Court from the Federal Magistrates Court?

Mr R Foster —No.

Senator BARNETT —You said that you have been appointed as the Acting CEO indefinitely.

Mr R Foster —Basically, until further notice. The previous Acting CEO is on extended sick leave. If he returns to work, that will change my position. Or it might be as a result of any decision the government makes in relation to the Semple review. So, basically, it is until further notice.

Senator BARNETT —When did he take sick leave? When did that commence?

Mr R Foster —It commenced during October 2008.

Senator BARNETT —In terms of an appointment of a new CEO or his return, can you advise the committee of any further particulars?

Mr R Foster —There is nothing further that I can add.

Senator BARNETT —What is the future for the Federal Magistrates Court. We have had the Semple review and we have had the government’s response to the Semple review and we have been advised that a multitude of functions have been transferred to the Family Court. What is the prognosis and the plans for its future?

Mr R Foster —We are just waiting for the government to make a decision on the Semple review and I guess then we will respond accordingly.

Senator BARNETT —When is that likely?

Mr Govey —Senator, the timing is a matter for the government, but the response date for submissions in response to the discussion paper that was released was 6 February, from memory. I am now reminded that there were some requests for extensions so that date was put forward by another five days, so the date for receiving submissions was 11 February.

Senator BARNETT —So those submissions are now with the department and with the government—

Mr Govey —That is correct.

Senator BARNETT —and you are reviewing those submissions?

Mr Govey —That is correct.

Senator BARNETT —What is the prognosis on a response by the government?

Mr Govey —It is a matter then for the Attorney to make a decision together with cabinet.

Senator Wong —The consultation period concluded 12 days ago. It is a matter that is before government.

Senator BARNETT —Are we talking weeks or months?

Senator Wong —It is a matter that is before government. I cannot assist you any further, Senator Barnett.

Senator BARNETT —I wanted to ask a few questions on waiting times, but I know that Senator Brandis may have some questions on this matter.

Senator BRANDIS —I really only have one question, and I apologise, Minister and officers, for arriving late in the discussion. Senator Barnett, in a sense, has covered much of this ground with his questions. I suspect this might best be a question for you, Mr Wilkins, given that as the minister has just told us the issue of the Semple report is before government. I take it that we may deduce from that statement that no final decisions have been made yet. Given that in the various respects in which you and other officers have described the position there has been a de facto consolidation of the administrative arrangements of the Family Court and the Federal Magistrates Court and even the unification in a single person, Mr Foster, being the common CEO of the two courts. My concern is: what happens if the government decides not to adopt the recommendations of the Semple report or the government decides to adopt them and introduces legislation to give effect to them but the parliament does not agree to pass the legislation in the Senate so that the pre-Semple report status quo or some variant of it remains? In those circumstances what costs are going to be involved in unscrambling these common administrative structures?

Mr Wilkins —As the minister said, this is still obviously a matter of decisions to be made before the government. But you are asking a hypothetical question. What informed the convergence of functions were efficiency issues, and this is happening throughout government throughout portfolios. There is no reason why, if you were not to go ahead with the whole of what Semple recommends, that that should not remain in place. It recommends itself in terms of efficiencies in any event.

Senator BRANDIS —I guess what I am concerned about is the issue of anticipation or prejudgment. My view of this issue is that the two courts, the Family Court and the Federal Magistrates Court, have proceeded in the last few months almost as if, or on the assumption that, the Semple report were a given. As we know from the minister, the government has not yet decided whether or not or to what extent, if at all, to adopt the recommendations of the Semple report. It is a little unusual to see agencies whose structure is the subject of a review, the outcome of which is still pending a decision of government, to proceed as if the conclusions were a fait accompli. Do you understand my concern?

Mr Wilkins —I understand, but what I am saying is that there are a variety of reasons why you look for common services and you look for these sorts of efficiencies. That does not necessarily pre-empt the Semple report at all. If the Semple report were adopted then you presumably would need other changes of a legislative sort. But what I think is happening in this instance could happen in other instances in other departments. It has nothing to do with whether there is a Semple report or there is not a Semple report. It is not pre-empting it in that sense.

Senator BRANDIS —Okay. May I take it from your answers to my two questions that in the event that the Semple report were not given effect to, either by executive or parliamentary decision, there would be no additional costs incurred in consequence of the convergence of the structures that has occurred in the last few months?

Mr Wilkins —In fact, there should be continued efficiencies in terms of the current arrangements.

Senator BRANDIS —So if, for example, the Senate decided to reject legislation giving effect to the Semple report—were that the way the government went—that would not entail any costs?

Mr Wilkins —No. It would not necessarily involve any unwinding.

Senator BRANDIS —Thank you.

Senator BARNETT —Mr Foster, what is the average waiting time for a case to be heard?

Mr R Foster —In the FMC, in the 2007-08 financial year, 49 per cent of applications for final orders were finalised in less than six months and 79 per cent of applications for final orders were finalised in less than 12 months. So 80 per cent of orders are being finalised within less than 12 months.

Senator BARNETT —Would you imagine those figures would be similar in this financial year?

Mr R Foster —I would like to think there would be an improvement.

Senator BARNETT —If you are happy to take that on notice, you could give us the latest figures.

Mr R Foster —I will certainly take it on notice and get the latest figures for you.

Senator BARNETT —That would be good. What about family law matters specifically?

Mr R Foster —These are applications in family law, but only for final orders. For interim orders, 79 per cent of applications are being finalised within six months.

Senator BARNETT —In terms of the FMC and the Family Court, it seems like your record at the FMC is far superior.

Mr R Foster —I would expect that because of the less complex types of matters that are there. If you were doing things on average, you would expect that many of the matters in the FMC would be dealt with quickly. That is really the reason why the FMC has its culture of faster turnarounds et cetera. It still deals with complex cases. I am not saying they are not complex, but they are not the most complex cases. And there are more of them. They are now dealing with 80 per cent of the filings across both courts. So those figures would not be a surprise to me. In fact, it would be a surprise if it were the other way around.

Senator BARNETT —Indeed. This is I guess one of the fears that perhaps some people have about the Family Court takeover of the Federal Magistrates Court matters—the delay period. I think Senator Fielding has picked up on the concerns of having extended delays before the court.

Mr R Foster —I think the Semple report is fairly clear about having two divisions and the split of the work. It is pretty much around what it is now.

Senator BARNETT —Do you have the latest figures on vacancies and appointments for the FMC?

Mr R Foster —Currently there are 61 federal magistrates, including the Chief Federal Magistrate. There are currently no vacancies.

Senator BARNETT —You indicated earlier that the court was adequately resourced for the required workload. Can you confirm that?

Mr R Foster —I have never said that any organisation I have ever worked with has been adequately resourced, but we have to work with what we have. We are under financial pressures, as is every other agency, and we are managing the workload with what we have at the moment.

Senator BARNETT —Thank you.

CHAIR —Mr Foster, thank you very much to you and your officers for your attendance today.

 [11.45 am]