Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Hansard source

As the Attorney has already outlined in his second reading speech, the Jurisdiction of the Federal Magistrates Court Legislation Amendment Bill 2005 is going to amend several acts, with the effect of extending the jurisdiction of the Federal Magistrates Court. I will cover some of the detail, but, given that the main issues have already been flagged by the Attorney, I simply indicate that Labor support this bill. He has noted that the jurisdiction of the court will be extended for certain trade practices matters, any federal matters remitted from the Federal Court or Family Court, certain admiralty matters and certain child support matters. These are sensible changes which will improve the flexibility and efficiency of the federal judiciary, so we are pleased to be supporting the bill.

I note that the Attorney also referred to a number of reviews and consultations that have led to these changes being put forward in this bill. We do have one serious criticism of the 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 Magistrates Court jurisdiction over trade practices matters will be a great help to small business and consumers, as the Magistrates Court has a lower costs regime than the Federal Court. As the minister noted, this follows a recommendation from the Senate Economic References Committee report on the effectiveness of the Trade Practices Act in protecting small business.

However, what the minister did not note was that the government has chosen to accept only part of that recommendation which came from the Senate references committee’s report about protecting small business. The government has refused to accept the recommendation that the FMC have jurisdiction over matters arising under sections 46 and 46A of the Trade Practices Act. Those are the sections that relate to the misuse of market power. Instead, it has limited the extended Magistrates Court jurisdiction to matters involving unconscionable conduct, industry codes, pyramid selling and actions against manufacturers and importers of goods and defective goods.

Of course, we welcome that those matters have been included in the extended jurisdiction, but we think that the gap and the selective acceptance of the recommendations from the Senate committee are going to leave small businesses at a disadvantage. Small businesses clearly do need protection from the misuse of market power. We know that they can instigate their complaints in the Federal Court, but it is exactly those small businesses that might be deterred from taking such an action by the higher costs involved in Federal Court litigation compared to a proceeding before the Magistrates Court.

It is particularly ironic that we are debating this in the very week that the government’s workplace relations changes come into effect, where the government has been pretending to be such a friend of small business. It has been advocating its changes in the industrial relations area, arguing that these are advantages for small business. I am not going to have a debate about industrial relations, although I actually think the complexity of the legislation that the government has introduced is going to be a serious cost to small business. But I flag that as a point to say that you cannot on the one hand in one policy area say that you are a friend of small business and then neglect to pick up what is a serious recommendation from a Senate references committee to extend the Magistrates Court’s jurisdiction in a number of areas to ensure that small business can have access to justice. There does not seem to be any rationale as to why the government has chosen to pick up half of the recommendations but not the other half.

Labor are going to be moving an amendment to address this gap. We have given notice to the government on that, and it will be our intention to ensure that the amendment is moved in the House and not in the Main Committee. I flag my intention to move a motion to that effect at the end of this second reading debate. I also flag my intention that the amendment that we will be moving in the House will go to this issue of extending the jurisdiction of the Federal Magistrates Court to those misuse of market power matters that the government did not pick up. This should be no surprise to the government, given that this amendment has also been moved in the other place.

Labor supports the remainder of this bill. Schedule 2 will give the Federal Court and Family Court the option to remit any matter within their jurisdiction to the Magistrates Court. This will give those courts more flexibility over how they manage their workloads. Schedule 3 is going to amend the admiralty acts to give the FMC jurisdiction over a range of maritime claims, and they can be remitted by the Federal Court or a state supreme court. This will effectively give the Magistrates Court an equivalent jurisdiction to that held by the state and territory lower courts.

Schedule 4 will give the Magistrates Court jurisdiction to hear appeals against departure prohibition orders made by the Child Support Agency. It is appropriate that appellants against these orders should have access to a cheaper and quicker forum, such as the Magistrates Court.

Although we note these changes, with the exception of the gap that I have already indicated, we also note that the government did not take the opportunity to include in this bill a number of other matters that it could have in extending the jurisdiction of the court. Early last year, we were told that the government was planning to extend the jurisdiction of the Magistrates Court to include certain consumer protection and insolvency matters arising under the ASIC Act and the Corporations Act respectively. This is what was proposed in an exposure draft that was circulated in 2004. I ask the Attorney: where have these amendments gone? What are the government’s intentions in this area? Why have consumers and creditors had to wait longer for the government to consider its view in this area?

Similarly, we see nothing in this bill that came out of the report of the Advisory Council on Intellectual Property on extending the Magistrates Court’s jurisdiction to cover patent, trademark and design matters. The report came out in late 2003. We are now in 2006. It seems to us that this issue has possibly been put in the ‘too hard’ basket. Perhaps in summing up, the Attorney might advise where the government is at on these matters and why, although it is using this bill to extend the jurisdiction of the Magistrates Court, these other matters have not been included in this bill. We will continue to monitor these issues and look forward to seeing the government taking some action on them in the future.

Lastly, I would like to note that, obviously, these changes have the potential to significantly increase the workload of the Magistrates Court. We hope that the government is actively monitoring the workload, the resources and the performance of the Magistrates Court to ensure that on its current resources it is able to meet not only its current demands but also increases that will result from this bill. The Magistrates Court did receive an increase in resources in the last budget, which was flagged to help pay for increased family law work, but this bill will add jurisdiction which goes well beyond family law. We will be monitoring this closely, because we believe that, if these reforms are to be meaningful and the Magistrates Court is to fulfil its promise of being a cheaper, more accessible forum where people can get access to justice quickly, it needs to be resourced properly to be able to do that.

It is clear that the funding of the federal judiciary in general does need urgent government attention. I was staggered when the Productivity Commission recently found that the Federal Court’s expenditure per case finalised has recently increased by around $5,000 per case to nearly $17,000 per case in just one year from 2003-04 to 2004-05. I was even more surprised not just to find that in the Productivity Commission report but to be told by the Attorney-General’s Department in answers to questions in additional estimates that they were quite unconcerned about this matter, simply saying that they may at some stage talk to the court about this issue. Of course we understand that the courts must be responsible for the administration of their own finances, but the government always has responsibility for assessing and meeting the overall costs of providing justice. This includes making sure that it is allocating resources appropriately across the federal courts. This bill will lighten the load of the Federal Court in terms of sheer numbers of cases and it will increase the load of the Magistrates Court. This does have resource implications. We would like to be confident that the government is going to keep an eye on the impact that its legislative decisions have on the costs of matters going before any range of federal courts. We expect more concern and government action over this issue than was evident at additional estimates.

The Magistrates Court was set up to be a quicker and cheaper forum for less complex matters, but we need to make sure that it does not develop into simply an overworked poor cousin of the Federal Court. That will not be in the interests of small business, consumers, families and others who hope that the federal Magistrates Court service can actually provide them with quicker and cheaper access to justice. Labor supports those bills, and I flag my intention to move that proceedings after the second reading debate return to the House.

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