Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

The Courts Administration Legislation Amendment Bill 2015 makes some machinery changes to the administration of the federal courts. It implements the merger of certain back-office corporate services functions of our three federal courts—the Federal Court, the Family court and the Federal Circuit Court.

The merger of these functions, including finance, human resources, information technology and property administration is claimed to save some $9.4 million over the six financial years to 2020-21. It is expected that it will save a further $5.4 million annually in the years beyond.

This savings measure was announced by the government in last year's budget, and the bill was introduced into the Senate and has now come to the House of Representatives. It is important to emphasise, for the avoidance of any doubt, that the bill will not alter the independence of the three courts. This bill merges only very limited corporate functions. The substantive operations of the three courts remain distinct. The jurisdictions remain distinct. The courts will remain of course separate entities under their respective establishing acts. They will continue to be governed by their respective heads of jurisdiction. This is appropriate. Each court has its own distinct jurisdiction and each has developed distinct expertise and practices to deal with the unique challenges of each jurisdiction. The bill will not affect this.

I want to note the concerns raised by the Family Court in the formal submission that was made by that court to the Senate Legal and Constitutional Affairs Committee's inquiry into this bill. I understand from the committee's report that, although the committee appreciated the concerns that were raised by the Family Court in its formal submission, the committee determined not to adopt these suggestions that were put forward by the court.

The administration of the courts is a sensitive business and it is ultimately a matter for the government to ensure that the various needs of the federal courts are all accommodated. I am advised that the government is working with the Family Court to resolve its concerns through administrative rather than legislative arrangements and I note that much of the detail of the merger of corporate services will be worked out in a memorandum of understanding between the courts. The committee has recommended that the final arrangements arrived at in this matter be reviewed by the government in the new future, and Labor would strongly endorse that recommendation.

It is of course important that, as I said earlier in my remarks, the Family Court, the Federal Court and the Federal Circuit Court all maintain the independence that is an integral part of their roles and any change, including changes to the administrative arrangements, which is what this bill is directed at, must be implemented in a manner that does not prejudice that independence and that does not alter the very important independence that is part of the role of the courts of each of these three courts.

While we will certainly keep a watchful eye on the implementation of this back office merger, Labor does support this bill. Where possible, we support removing duplication of back office functions so that funding can be best directed towards dealing with the core business of the courts and with meeting the needs of Australians who find themselves before those courts.

I can say more generally that Labor supports the merging of back office functions across government departments and agencies where that merger can take place without a compromise of the delivery of services by those government departments and agencies. It is obviously the case that it is going to be possible in some circumstances for government departments to share premises where premises have been leased or built by the Commonwealth. It is obviously also going to be the case that there is potential for the sharing of information technology systems between government agencies and departments. That is particularly so for smaller agencies that may not have the resources to develop and build facilities or information technology systems by themselves. Very often, there are considerable economies to be achieved by smaller agencies sharing facilities, information technology systems and support staff in some cases. That is an efficient use of Commonwealth resources.

The courts ought not to be an exception to that principle. Shared back office services can, in appropriate cases, without compromise to the fulfilment of the function of the particular agencies or departments, be a useful thing to do. The courts should not be an exception to that principle and they are not being an exception to that principle, because what this bill is dealing is a merger of back office systems.

That said, no-one should be under any illusions that the measures in this bill will, on their own, address the crisis now faced by our federal courts. Clearly, there are very significant problems with our federal courts which demand the Attorney-General's attention and action. Comparatively minor changes to back office administrative arrangements will not suffice. The measures in this bill are certainly not a substitute for the government taking action on the range of problems that this government's failure to properly resource the courts is causing.

It is not just Labor that is drawing attention to this. The heads of jurisdiction have repeatedly warned the government, publicly through the Senate estimates process and through their annual reports, of the consequences of the government failing to properly resource their courts. Most recently, in the annual report of the High Court of Australia, the Chief Justice of the High Court of Australia, Justice Robert French AC, drew attention to the potential problems for the High Court of failing to properly resource that court.

The situation is most dire in the Federal Circuit Court of Australia, a situation that the government has inexplicably decided to make even worse by failing to appoint judges to vacancies as they arise in a timely fashion. This is a completely unforgivable failing on the part of the government because judicial vacancies are almost always known well in advance. That does not apply in the regrettable incidence of a judge falling ill or, worse, dying in office; but most judicial vacancies do not occur for those reasons. Rather, they occur in the ordinary course of planned retirements, either when judges reach the statutory retiring age or when, as a matter of planned retirement, they leave office. In either case, either the judge reaching statutory retirement age or the judge deciding that she or he will leave office, the Attorney-General is always aware well in advance that that vacancy is about to occur.

Leaving a fully funded judicial position vacant is unforgivable. It produces no savings for the Commonwealth. Failing to fill a judicial vacancy that has arisen as a result of retirement produces no alteration to the fiscal situation. All it means is that the court services, which need to be provided to our community, are simply not provided. That is why we have had complaints from Newcastle, Wollongong, Brisbane and other places in Australia where this government has simply done nothing to fill either a judicial vacancy or multiple judicial vacancies which have arisen. I will come back to this.

While I am speaking on court administration, I cannot let the opportunity pass to note that this government has failed to provide appropriate physical accommodation to a Federal Circuit Court judge who has now been appointed full-time to serve the Rockhampton registry of the Federal Circuit Court of Australia. This is not the creation of a new judicial position on the Federal Circuit Court. Rather, it is a reallocation of personnel on the Federal Circuit Court so that Rockhampton will, hereafter, have a full-time Federal Circuit Court judge. That is a commendable step; but this government, in the typical fashion of this Attorney-General, has failed to properly complete that appointment by making sure that there will be somewhere for this newly appointed Federal Circuit Court judge to serve the Rockhampton Registry full-time—that she will have somewhere to sit.

I was reminded of this yesterday because in this House the member for Capricornia, speaking on the appropriations bill, was quite happy to boast about what she described as 'her announcement with the Attorney-General' of this full-time Federal Circuit Court judge for Rockhampton. What she failed to do was to explain in any way what it is that this government is going to do to provide actual physical accommodation. By that, I mean a courtroom and an office in which this Federal Circuit Court judge is going to be able to work.

This is not something which is being raised for the first time by me here. It is something that the Queensland Attorney-General, the Hon. Yvette D'Ath, made clear from the outset when this appointment was first announced, back in December, saying that the Commonwealth government had completely failed to raise with the Queensland government how, if this is what the Commonwealth was proposing, there was to be a sharing of resources or access to state facilities. It has of course been the case that the Queensland government and the Queensland court system have very generously made available, in the past, space in state court facilities in Rockhampton for a visiting Federal Circuit Court judge to sit, in the one week in eight or one week in 10 that had been the circuit arrangements previously. The Queensland government has made it very clear that this situation will not be able to be extended to a full-time Federal Circuit Court judge sitting all the time in Rockhampton, because there simply is not space in the Rockhampton court facilities for that to occur.

The Queensland Law Society, like me, welcomed the appointment of a full-time Federal Circuit Court judge in Rockhampton but made the point—and I am quoting here from a report in The Guardian of 3 February—that Rockhampton's:

… existing court infrastructure … is stretched to breaking point.

The Queensland Attorney-General, the Hon. Yvette D'Ath, has said that there needed to be an upgrade of state facilities if it was suggested by the Commonwealth that there is to be a continuation of shared arrangements. All that is actually happening is that the Liberal National Party is playing politics with our courts and judges. As Ms D'Ath said—and I quote from the same Guardian article:

The LNP should not play politics with our courts and judges. I urge them not to play politics with the people of Rockhampton.

I join with the Queensland Attorney-General in saying that this is not a matter to be politicised. It is not a matter that is owned by the member for Capricornia, that she gets to go out and announce—not even waiting for the Attorney-General, as would be the ordinary course for every judicial appointment, but rather rushing out to announce as if she were somehow deserving of credit for the appointment of a full-time Federal Circuit Court judge in Queensland. It is a very empty gesture indeed if the Commonwealth has announced this appointment but has reached no proper arrangement, contractual or otherwise, with the state of Queensland over the sharing of court facilities in Queensland. It is an appointment that will end up perhaps with this Federal Circuit Court judge sitting on the street, because, without facilities, the court actually will not be able to perform the function that it should be performing for the people of Rockhampton.

This is something that the federal Attorney-General, Senator Brandis, has completely failed to resolve. I call on him now, as I have called on him previously, to resolve this situation, to treat the Queensland government with some respect and to try actually either answering correspondence from the state Attorney-General or perhaps picking up the phone to speak to her. That might be a good start. But it is symptomatic of the way in which the government have treated most matters to do with courts administration that they have rushed to make an announcement about a full-time Federal Circuit Court judge sitting in Rockhampton but done nothing about providing appropriate facilities for that judge to sit in.

I return to the subject matter of this measure in the bill. The smooth and steady administration of the courts is usually taken for granted as a basic function of government, but not a week now goes by when I have not been contacted by one community or another deeply concerned about the future of vital court services in their region. Uncertainty abounds. The closure of entire registries has been mooted, perhaps most incredibly the closure of the registry in Parramatta, an eventuality which should be completely unthinkable. Hardly a week goes by when we do not hear a coalition member of this House from Western Sydney talking about the huge expansion of population and the need for additional facilities in Western Sydney. The idea that the Parramatta registry might be closed is truly unthinkable, but so too is the failure of this government to fill judicial vacancies in Wollongong, in Newcastle, in Brisbane and in other places around Australia. There is no excuse for this. This is not talking about whether or not additional judicial positions should be found; this is talking about the failure of the government to actually fill vacancies of fully funded judicial positions.

What is worse, the management of tight court resources has been made harder by the multiple rounds of cuts that this government has inflicted on the legal assistance sector. These cuts started as soon as this government came to office in 2013. They have continued ever since, so that legal assistance services, including legal aid commissions, community legal centres, Aboriginal and Torres Strait Islander legal services and the family violence prevention legal services—also part of the legal assistance sector—have all had to cut back on the front-line services that they are able to provide to communities across Australia.

The legal assistance services which this government has cut are not some luxury which can be reined in during hard times. They are actually integral to the smooth functioning of our courts. They are a basic community service. They are basic to access to justice. It is shameful the way this government has not once, not twice but three times cut legal assistance funding across the country. The timely provision of proper legal services can often avoid a matter going to court in the first place, and, if it must go to court, legal assistance will ensure that the matter proceeds as smoothly as possible, not clogging up the courts unnecessarily.

This is something that the Productivity Commission—in an excellent report delivered in 2014 on the legal assistance sector, commissioned by Labor in government—made clear that the provision of legal assistance funding is something that benefits the community in multiple ways. Not only is there, generally, a benefit to the community from the avoidance of a dispute or from the settling of a dispute but also when disputes continue there is a benefit to the community in that court services can be provided more cheaply and efficiently if litigants in courts are represented.

Cuts to legal assistance lead to an increase in the number of cases in which litigants are unrepresented. As judges repeatedly say, and comment on in the annual reports of their courts, unrepresented litigants place a burden on judges, they place a burden on staff and they place a burden on court resources. Generally, cases where litigants are unrepresented take longer. Not only do they take longer to get to court, not only will the interlocutory processes in that case take longer and place a greater burden on the judge, because she or he is going to have to guide the unrepresented litigant—it is part of the duty of the judge to do so and judges take that duty exceptionally seriously—but also they will have to guide the unrepresented litigant through the thickets of the law in order to make sure that proper access to justice is provided to that unrepresented litigant. They take longer to resolve at the interlocutory level and cases with unrepresented litigants in them take longer to resolve at the trial level.

This government has, clearly, not properly considered what the impact was going to be on the court system as a whole by the cuts that they have inflicted on the legal assistance sector. These are cuts to the state and territory legal aid commissions, in terms of the Commonwealth's contribution to them, cuts to the community legal centres—the 130-odd community legal centres across the country that have historically received funding from the Commonwealth—and cuts to the other two parts of the legal assistance sector. I speak, there, of the Aboriginal and Torres Strait Islander Legal Services and the Family Violence Prevention Legal Services.

I will pause on the second of those to note that this Commonwealth government, absurdly, transferred the family responsibility for the Family Violence Prevention Legal Services from the Attorney-General's Department to the Department of the Prime Minister and Cabinet, mistakenly not understanding the excellent role that is played by the Family Violence Prevention Legal Services.

They were established by the Howard government, some 17 years ago, to deal with the fact that Aboriginal and Torres Strait Islander Legal Services regularly experience a conflict of interest in duty in acting for both perpetrators of family violence and victims and survivors of family violence. They cannot act for both and, in order to deal with that conflict problem, the Howard government—and I applaud this action—quite rightly set-up an alternative source of legal advice for, almost always, women in Indigenous communities and, very often, in remote Indigenous communities, to receive appropriate legal advice.

The idea that this particular form of legal assistance—the legal practices that are the Family Violence Prevention Legal Services—should have been swept up into the Office of Indigenous Affairs was simply wrong. I am hoping that the day will come when those Family Violence Prevention Legal Services are, again, transferred back to the responsibility of the Attorney-General's Department, appropriately, as part of the legal assistance sector as a whole.

The government must act to ensure that not just the legal assistance sector but the courts themselves are put on a stable financial footing into the future. I call on the Commonwealth Attorney-General to release the KPMG report, which he commissioned, into the funding of the federal courts in 2014 and explain to the courts, the legal profession and the Australian community how he intends to make sure that our courts are properly resourced into the future. This is, after all, one of the most basic responsibilities of the office of the Commonwealth Attorney-General. And, regrettably, it is a responsibility which this Commonwealth Attorney-General and this government are conspicuously failing to meet.

Debate adjourned.

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