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

I rise today to speak on the Judiciary Legislation Amendment Bill 2006. I thank the Main Committee for its indulgence, due to the difficulties that have been experienced with multiple bills being debated in other places today. The need for this bill arises from the government’s discovery late in 2005 that a large number of family law consent orders were being made by registrars in the Victorian Magistrates Court contrary to the restrictions contained in section 39(2)(d) of the Judiciary Act. Following this revelation, the government introduced amendments in the Family Law Amendment (Shared Parental Responsibility) Bill 2006 to ensure that the ineffective family law orders that had been made could be effectively validated. Subsequently, the government learnt that there were actually a number of other orders—for example, in relation to tax matters and other federal law matters—that had also been made by other state courts contrary to section 39(2)(d).

Accordingly we are now here with this bill, which aims to rectify the problem. Clearly, the parties who have been affected by this jurisdictional bungle need to be provided with certainty as quickly as possible. As far as those parties are concerned, they have presented to court and had their matter dealt with and would imagine that everything is completely in order. This bill has three aims. Firstly, it seeks to give effect to those orders that have been made contrary to section 39(2)(d) of the Judiciary Act by non-judicial officers of state courts of summary jurisdiction by providing that the rights and liabilities of all persons are the same as if such order had been an order made by the court in the exercise of its federal jurisdiction. Secondly, the bill seeks to create new statutory rights and liabilities for parties so that these new rights may be exercised and enforced in the same manner as valid orders of the relevant court. In this respect, the bill aims to provide certainty for the parties and avoid unnecessary legal challenges. Thirdly, the bill repeals section 39(2)(d) and section 68(3) of the Judiciary Act in order to prevent this situation arising again in the future. Given that we have been here twice already now dealing with these matters, that does seem to be a sensible precaution.

Let me deal firstly with some of the background to these amendments. Under section 76 of the Constitution, the parliament may make laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the parliament. Under section 77 of the Constitution, the Commonwealth parliament may invest any state court with federal jurisdiction with respect to any of the matters mentioned in sections 75 and 76 of the Constitution. The Judiciary Act of 1903 regulates the structure of the Australian judicial system. Federal jurisdiction is conferred on state courts in general terms by section 39 of the Judiciary Act. Section 39(2) of the Judiciary Act vests state courts with jurisdiction over the full range of matters enumerated in sections 75 and 76 of the Constitution, except those made exclusive to the High Court.

Section 39(2) imposes three conditions or restrictions on the exercise of federal jurisdiction by state courts. One of these current conditions states that when a state court exercises federal jurisdiction summarily, the jurisdiction must be exercised by a person falling within one of three classes: firstly, a stipendiary police or special magistrate; secondly, a state magistrate specially authorised by the Governor-General to exercise such jurisdiction; or, thirdly, an arbitrator on whom jurisdiction is conferred by state law. In other words, registrars and other non-judicial officers of state courts of summary jurisdiction do not have jurisdiction to make certain orders in federal matters. Drafted in 1903, the presumed goal of the section was to ensure that federal jurisdiction was exercised only by suitably qualified persons, reflecting a concern that some lay magistrates might not be suitable to exercise federal jurisdiction by reason of their lack of formal legal qualifications, experience or expertise. As I will note later, this situation has now, of course, changed dramatically.

Section 68 of the Judiciary Act provides state and territory courts with jurisdiction to handle criminal cases arising under Commonwealth law. But the section does limit the range of state and territory courts which have jurisdiction over committals and summary convictions to a judge, stipendiary police or special magistrate, or some magistrate of the state or territory specially authorised by the Governor-General to exercise such jurisdiction. In summary, section 68 provides similar restrictions to section 39 in relation to the exercise of federal jurisdiction but in criminal rather than civil matters.

Despite these restrictions being in the Judiciary Act, parties to the relevant proceedings have legitimately acted on the assumption that the orders they have received in state courts were valid and could be relied upon. These parties need to be provided with certainty as quickly as possible. The bill seeks to do that and to rectify the irregularities in those cases and change the Judiciary Act to prevent the problem in the future.

I will now turn in some detail to the provisions of the bill. As I have said, the bill amends the Judiciary Act in the ways that I have set out and schedule 1 is designed to fix this problem for the future. The explanatory memorandum actually makes clear that:

This will place State summary courts in the same position as State district, county and supreme courts, enabling States to determine, subject to constitutional requirements, which class of officer may exercise federal jurisdiction and in what circumstances.

Obviously that will help with the resolution of a number of matters and make sure that those orders that have already been made cannot be made in the future inappropriately.

I am not going to go through a number of the other parts of this bill because I think that the other speakers have already dealt with them. However, I do want to flag that schedule 1 part 2 creates the legislative framework for validating past orders. It is important to give those parties that I have mentioned who have unwittingly used this procedure certainty and consistency. It would not be in anybody’s interests, theirs or the community’s, to require that all these matters be relitigated. This part is, though, extremely technical, because the transfer and transitional arrangements must be meticulously dealt with to ensure that all parties are properly protected.

There is a concern about a number of the processes that have been taken. I am just looking to see whether it is necessary to go through the particular provisions of the way that these orders are going to be made effective. I think it is sufficient to note that the part deals with it and that the provisions are extremely detailed. It is important that, if a person is relying on an order that has been made by one of these courts or if there is an enforcement issue relating to an order, those orders can be enforced in the proper way. So an unusual process does have to be adopted to do this and we are assured by the Attorney’s office and the department that there are no constitutional or other problems with taking this course of action.

Labor also understands that the state governments have been extensively consulted and are agreeable to the changes that are proposed in the bill, considering it an opportunity to better control the allocation of workloads within their jurisdictions. While Labor acknowledges that state courts are adequately equipped with appropriately-trained staff to exercise federal jurisdiction in the manner intended by the bill at this time, we do remain concerned about the future ramifications of these changes. We hope that the department intends to monitor these changes, keeping a closer eye on the operations of the courts than it evidently has done in the recent past. Of course there are jurisdictional issues, but the federal department does have an interest in the operation of state courts to some extent, given that they are exercising so much federal jurisdiction these days.

We have been assured by the department that there are no unforeseen constitutional issues arising from this bill. We do nevertheless have some apprehension about the approach taken to validate past orders. We hope that the government’s advice is right; otherwise, inevitably, it will be challenged in the future either by an affected party or by someone who no longer wishes to be bound by some of these orders. Further, we do note that the state courts exercising federal jurisdiction are still subject to constitutional requirements—those of chapter 3 and others. We note that the state courts will need to manage this change carefully to ensure that both federal and state jurisdiction is exercised only by suitably qualified officers. Again, we hope that the department’s advice is right on this and that, as I have already said, the department will appropriately monitor developments in this regard.

The government, however, claims that these changes will contribute to a more accessible, efficient and flexible civil justice system—which does seem a somewhat gross overstatement of what this bill is going to deliver. It is a tidying-up bill if nothing else. It does of course, by making changes to the Judiciary Act to ensure that these problems cannot arise in the future, provide some flexibility—although that is really quite small in the scheme of things.

A more accessible, efficient and flexible civil justice system is not going to be delivered, however, from this bill. It will only come about with a detailed forward plan for our federal courts, with adequate resources being provided, with reform systems for judicial appointments and complaints, and with a real commitment to timely resolution of legal matters and a proper resourcing of legal support either through community legal centres or legal aid. Unfortunately, the government shows no interest in any of these matters—all ones which could contribute much more to an accessible, efficient and flexible civil justice system.

I have also spoken before of the need for a plan for our courts that goes beyond one electoral cycle. The Attorney-General does not appear to have any plan for the federal judiciary, no map for how our federal courts should interact between themselves or with state courts, no strategy for the judges and no concern for the prompt resolution of federal legal matters—and, I hasten to say, no strategy for the number of judges rather than for any decisions that they might take. The problem arising in this instance is merely a reflection of this government’s general neglect of the judiciary, the vital third arm of our democracy.

Other than the question of judicial pensions, I note that no parliamentary committee has considered any issue affecting the judiciary in the life of this government. I believe it is now time for a joint select committee into the judiciary to be established to consider a range of structural matters affecting the federal judiciary in a thorough and proper way. It could help air a range of issues, including the difficult ones like the appointment of judges, complaints processes, and complaints against judges and processes for handling those. It could set up an appropriate mechanism for dialogue between the parliament, the courts, the profession and, importantly, the broader community. It seems to me that these sorts of activities would do much more to deliver—as the government claims that these changes in this rather modest bill do—and contribute to an accessible, efficient and flexible justice system than the tidying-up bill that we are passing here today.

Notwithstanding a few of the moderate concerns that we have, particularly in relation to some constitutional implications of this bill, Labor recognise the need to provide certainty to the parties who have unwittingly been caught up in this exercise of inappropriate jurisdiction. They need to be dealt with promptly. Accordingly, we support the bill and the government’s efforts to try to ensure that all of the technical transitional provisions are appropriately included in the bill. I commend it to the House.

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