Shayne Neumann (Blair, Australian Labor Party) Share this | Hansard source

I speak in support of the Courts and Tribunals Legislation Amendment (Administration) Bill 2012. The genesis of this bill lies in the folly of the Howard coalition government and their difficulties in terms of their challenges and travails with the then Chief Justice of the Family Court, Alastair Nicholson, in response to efforts made by the Family Court in relation to making procedures simpler in terms of rules and regulations, the establishment of judicial registrars and a greater emphasis on mediation, conciliation conferences and the like. From an ideological point of view, the coalition government established a Federal Magistrates Court which involved duplication of many services and a duplication of jurisdiction. I remember sitting down at a family law conference over in New Zealand, explaining to some family lawyers in Christchurch over a cup of coffee the idiocies of our jurisdiction with respect to the Family Court. They were just bewildered about it.

So let's not get this idea that somehow we had a sort of legal nirvana under the Howard coalition government. They established a real problem in the overlapping jurisdiction of the Federal Magistrates Court and the Family Court. Anyone that practised in that jurisdiction and any litigant that went in there knew that you got moved from pillar to post. There was a duplication of administration, there was a different culture and there were different rules, and that was a real problem. So we said we would look at a review of it.

So the then Attorney-General, Robert McClelland, announced that there would be a review into this. That review came back. It was done by the Attorney-General's Department in conjunction with Mr Des Semple, and they said that the current situation was financially unsustainable. That was announced back in 2009, not long after we got in. There were inefficiencies in administration. There were problems that were found in the delivery of family law services to Australians. There were challenges in terms of culture. There were a whole host of problems that were created by the Howard coalition government in terms of what they did with the establishment of the Federal Magistrates Court.

So there were further reviews in relation to this. There were some other challenges that we faced in terms of knowing where to go on this. So the Skehill report was established and undertaken to look at a strategic view overall about what should happen in terms of the performance of government programs against policy and examination of the federal court system in this country—the Federal Court, the Family Court and the Federal Magistrates Court. It was found by Skehill that in fact there were predicted deficits in relation to these courts. The report was projecting a deficit of about $19.5 million, or around eight per cent of the combined forward estimates appropriations to 2014-15. What was the response? The response was that we decided to go down a different path. The previous speaker talked about a circuit court—to rename the Federal Magistrates Court to reflect what is reality and to recognise that federal magistrates are in fact judges.

There were other challenges in this jurisdiction, but we know that if you were a litigant and you went to, say, the Commonwealth Law Courts Building in Brisbane, at North Quay, in order to lodge your application and you were not sure what to do—you had different forms for different courts and different registries—there were real problems. Fortunately, to a certain extent this was overcome by practical application. My experience was that there were real problems of imperialism in administration: one administration taking others. There were problems in terms of which part of the building they were in: who had jurisdiction? I saw judges referring matters to federal magistrates who said that they were the fount of all wisdom. There was real hostility in this area. So we had to have a change of culture. I think the practical merging of administration solved that problem to a large extent.

What we have seen with respect to this legislation is a change in the shared administration from a legal point of view. They have had a single chief executive officer since 2009, which I think has gone some way. Lawyers who practise in this jurisdiction tell me that there have been improvements in relation to this, but I am telling you that there were real problems before that. Let's not get into the idea that somehow there was a new Jerusalem when the Federal Magistrates Court was established by the Howard coalition government, because that is not the experience for litigants and the lawyers who practise in the jurisdiction.

This particular piece of legislation was referred to the House of Representatives Standing Committee on Social Policy and Legal Affairs. The report was tabled by the member for Moreton today as chair of the committee. It recommended that this particular piece of legislation be passed by the House and that the Attorney-General, in accordance with native title legislation and the Aboriginal and Torres Strait Islander Social Justice Commission, include a yearly report on the operation of the Native Title Act 1993, particularly concerning the functioning of the Native Title Tribunal, in relation to adequacy, expertise and, certainly, human rights.

I want to make this point: last Friday, at the National Centre of Indigenous Excellence in Redfern, we had a roundtable with the National Farmers Federation; the Native Title Tribunal; Fortescue Metals; BHP Billiton; the Attorney-General's Department; FaCSIA; the Social Justice Commissioner, Mick Gooda; lawyers who practise in this jurisdiction; people from the left, the right and the centre; and Callithumpians—we had the whole lot. We had so many people at the roundtable. The member for Moreton was also there. The general consensus was that there was need for reform with respect to native title in this country—that since the Mabo native title legislation has been in operation, there has been a need for comprehensive review of the legislation. It has been in operation for about 20 years. That was the consensus. It did not matter whether you were a representative from a mining company or an Indigenous person, that was the case. The recommendation of the Standing Committee on Social Policy and Legal Affairs, of which the member for Moreton and I happen to be members—he is chair of that one and I am chair of the Standing Committee on Aboriginal and Torres Strait Islander Affairs—was that we do a comprehensive review of native title. That is what the Standing Committee on Social Policy and Legal Affairs recommended when examining the legislation before the chamber today.

As a member of that committee, I strongly recommend that the government look at the native title legislation. We have had looked at bits and pieces. At the moment, the ATSIA standing committee are looking at the good-faith provision, the reversal of the onus of proof, the resurrection of extinguishment of native title and also Indigenous land use agreements. So we are looking at bits and pieces, but we are not looking at it in a comprehensive way. The Standing Committee on Social Policy and Legal Affairs recommended that the government take an opportunity. I use the opportunity in making this speech on this legislation to recommend to the government that we do so.

There are changes made by this bill facilitating the transfer of the National Native Title Tribunal's appropriation, staff and some administrative functions to the Federal Court of Australia, reflecting that the NNTT is no longer a statutory agency for the purposes of the Financial Management and Accountability Act. Skehill recommended some ways to improve the value for money for the government in terms of the discharge of functions. I think this is a sensible measure in that regard. You are never going to get a perfect legal system. You are never going to get a system which solves every inefficiency. You can do what you can do to improve access to justice. I think the proposed amendments do that in this regard. I think they put in place, from a legal point of view, that which was so clear such a long time ago.

On the National Native Title Tribunal, there were submissions made to the social policy and legal affairs committee by the registrar and CEO of the Federal Court of Australia and a number of other entities to address concerns particularly in terms of the amendments and the difficulties in terms of native title processing in this country. We have a situation where it takes an inordinate amount of time for native title claims to be dealt with. We have improved that by transferring some of the mediation processes to the Federal Court and improving the streamlining of that, and the former Attorney-General mentioned that. The issue of processing this in a more expeditious way was raised in detail last Friday in Redfern. It is something the government really needs to have a look at.

There have been concerns in the past in terms of the cultures of the NNTC, the Federal Magistrates Court and the Family Court. I think we have addressed that through the merging of certain entities but also in terms of making sure that those entities are staffed with appropriate people. Not every appointment is as good as we would like, but certainly there are appointments in the last couple of years which have been better appointments. It has now been over 20 years since Mabo. We heard in our legal and constitutional affairs advisory report inquiry that there were 211 native title claims on the Native Title Register and about 166 determinations that native title exists, but it would take decades, we found, for all of these claims to be dealt with. We have to look at how we do this better in this country. We cannot have people who feel they have a native title claim being held up for that time. We have got to make improvements.

According to what we have seen, I think there will be some savings. We had some evidence from the Chief Executive Officer of the Family Court, who is also the Acting Chief Executive Officer of the Federal Magistrates Court, that about $7.8 million has been saved by removing the duplication of structures and making changes. They are worthy improvements. But, as said before, there were initial cultural differences and obviously there was some inevitability in those challenges. But they will have improved, I am told. That is certainly the evidence we got from those people who made submissions to the inquiry and it is the evidence that I have received anecdotally from friends and acquaintances who practise in this jurisdiction and continue to do so.

I support the legislation. I think it is worthy of support and will make an improvement. There are things we can do in the future that will benefit both native title and family law, and we should always be vigilant about improving access to justice because that is what we should do in our role as parliamentarians.

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