Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Link to this | Hansard source

I am pleased to rise to speak on the Access to Justice (Federal Jurisdiction) Amendment Bill 2011. This bill seeks to amend the Administrative Appeals Tribunal Act 1975, the Family Law Act 1975, the Federal Court of Australia Act 1976, the Federal Magistrates Act 1999 and the Judiciary Act 1903 to implement the provisions of the Standing Committee of Attorneys-General model bills relating to procedural and jurisdictional matters relating to the Federal Court and the Administrative Appeals Tribunal.

I wish to note at the outset that the coalition broadly supports this bill as we recognise that affordable access to our courts is an essential component of the enjoyment of our individual rights and liberties. The coalition has a proud record in this regard. The establishment of the Federal Magistrates Court by the Howard government was the most important step forward in recent years, providing a forum for the low-cost, uncomplicated and efficient determination of disputes by a chapter 3 court.

We recognise that the final determination of disputes, especially in the courts but also in the various Commonwealth tribunals, necessarily entails steps that incur costs and delays—necessarily because the proper administration of justice requires the parties to disclose all information and material relevant to their dispute. Their processes can be abused by parties who seek to intimidate, delay and financially outshoot less well resourced litigants. Therefore, court and tribunal rules must ensure that judges and arbitrators have the authority and flexibility to detect and prevent abuses. The court and tribunal rules already provide this authority and flexibility, and the measures proposed by this bill provide incremental assistance to ensure that the administration of justice is not sidelined by process questions.

I will now briefly touch on the provisions contained in this bill. As has been noted in the bill's explanatory memorandum, the amendments proposed aim to provide the function and efficiency of the discovery rules in civil proceedings, specifically to provide more flexibility in costs orders and to allow pre-trial oral examination. The bill also aims to implement the SCAG model bill on suppression and non-publication orders and to implement the SCAG model bill concerning vexatious proceedings. It will align the jurisdictional limit of Family Court matters in Western Australia with the Federal Magistrates Court, and it will provide more flexibility to the AAT when dealing with the payment of fees.

One of the more notable issues in this bill is suppression and non-publication orders, which vary considerably across Australian jurisdictions. Stakeholders have suggested some minor amendments to the suppression order regime and to the explanatory memorandum in relation to the Western Australian Family Court.

The coalition supports measures to improve access to justice. However, we preserve the right to move amendments to this bill in the Senate pending the committee's recommendations. I note that this bill has been referred to the relevant committee. So, on the face of it, this bill does not present any problems. I think it is always wise within this parliament to give new legislation as wide an airing as possible so that people can look at it, examine it and make sure that the legislation itself is as flawless as possible. With that reservation in mind, the coalition does broadly support this bill and I therefore commend it to the House.

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

I rise to speak in support of the Access to Justice (Federal Jurisdiction) Amendment Bill 2011. After practising in the area of family law for more than 20 years before I came to this place, I have to say that I do not share the same faith and belief as the member for Stirling that the Federal Magistrates Court is a great step forward. The problem is that the Howard government, which he lauded in relation to its so-called proud history of legislative reform to improve access to justice, actually messed up the jurisdiction of the Federal Magistrates Court. We saw it having to be broadened and we saw more and more resources having to be applied to that court. This has resulted in concurrent jurisdiction in many respects between the Family Court and the Federal Magistrates Court. We have seen variability in terms of the appointments until recently, when we have seen better federal magistrates appointed, and we have seen problems of imperialism and administrative difficulties in the court registries between the Family Court and the Federal Magistrates Court. This is an area in need of legislative reform and I do not accept the belief of the member for Stirling. He lauded the Howard government as a great champion of the rights of people to access justice. That simply is not the case when you look at how it messed up the Federal Magistrates Court.

This bill amends by way of schedule a number of areas. In schedule 1 we are dealing with strengthening the power of the Federal Magistrates Court to deal with discovery. It provides additional direction for the Federal Court to have the power to make orders with respect to discovery and specifies the maximum cost that may be recovered for giving discovery or taking inspection. The process of discovery in any litigation, particularly matters dealt with by the Federal Court, can be expensive. This empowers the Federal Court judges to actually take control of the whole process of discovery, and I think that is a good and beneficial reform.

The second schedule deals with suppression and non-publication orders. These are very difficult issues for federal courts to deal with. I know that the Law Council of Australia has expressed some concern about this. There are grounds for making an order set out in section 102PF. I think they are right. I think the reform is good. I do think that having information in the public domain is a good thing, but there are times when suppression orders or non-publication orders have to be made, particularly when it is necessary to prevent prejudice to the proper administration of justice, to protect the safety of a person and to avoid causing undue distress or embarrassment to a party or a witness in criminal proceedings involving an offence of a sexual nature. It is only right, particularly in relation to children, that that is the case. There are good grounds for that and I support that schedule; I think it is important.

Vexatious litigants take up an enormous amount of time in court proceedings and schedule 3 deals with that. The new section 102QC allows a person to request a certificate stating that they are the subject of vexatious proceedings orders. In my practice as a lawyer I have dealt with vexatious litigants. It is extremely difficult to deal with them. Often they are quite unreasonable. I accept the reforms here.

Schedule 4 will remove the $5 million monetary limit on family property jurisdiction exercisable by family law magistrates in the Magistrates Court of Western Australia under section 46 of the Family Law Act 1975. I do think it is high time that the Western Australia government referred all of its powers over to the Commonwealth government so we have one system of family law in this country and Western Australians are not treated differently. There are always problems in that regard and I think it is high time that the dingo fence that stops at the Nullarbor Plain be expunged. I cannot see why residents of Western Australia should be treated any differently to residents of Queensland.

Schedule 5 deals with Administrative Appeals Tribunal fees. I note there was some concern expressed about changes in relation to fee structures for the Administrative Appeals Tribunal, which replaced the AAT's power to waive an application fee and replace it with a flat fee of $100. Here, we are allowing provision to be made for the introduction of a reduced application fee which imposes additional burdens on disadvantaged people and we are allowing the AAT to defer payment of the reduced fee to a later date. I note that the Law Society of Australia is comfortable with this particular change as it would relieve the hardship faced by applicants unable to pay the reduced fee.

I think there are some good and worthy reforms here. This is consistent with a government that is very committed to making sure people have access to justice. I think the coalition does not quite have the record the member for Stirling said it does with respect to reform, particularly in the area of the Federal Magistrates Court.

Natasha Griggs (Solomon, Country Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Access to Justice (Federal Jurisdiction) Amendment Bill 2011. This is a bill to introduce amendments which have been generated by the Standing Committee of Attorneys-General. The provisions prepared by this committee relate to a model bill for procedural and jurisdictional matters relevant to the Federal Court and the Administrative Appeals Tribunal. The amendments are directed at changes in the Administrative Appeals Tribunal Act 1995, the Family Law Act 1975, the Federal Court of Australia Act 1976, the Federal Magistrates Act 1999 and the Judiciary Act 1993.

The amendments proposed by the bill aim to improve the functioning and efficiency of the discovery rules in civil proceedings specifically to provide more flexibility in costs orders and to allow pre-trial oral examination. They are also to implement the standing committee's model bill based on suppression and non-publication orders and to implement the standing committee's model bill concerning vexatious proceedings to align the jurisdictional limit of family law magistrates in WA with the Federal Magistrates Court and to provide more flexibility to the Administrative Appeals Tribunal when dealing with payment of fees.

The coalition supports measures to improve access to justice. As the member for Stirling said, the Howard government established the Federal Magistrates Court with the express desire to provide a low-cost forum for the uncomplicated and efficient determination of disputes. Any court proceedings, however, generate costs and delays. In the pursuit of justice, consistency of decisions and open justice, we recognise that the administration of justice includes a requirement for parties to disclose relevant information and materials, which often leads to costs and delays.

It is unfortunate that these processes can be abused by parties with a mind to intimidate, delay and financially out-shoot less well resourced litigants. Acceptance of this point therefore requires the court and tribunal rules to enable judges and arbiters the flexibility to detect, and the authority to prevent, such abuses. While existing rules provide some existing measures, this bill provides incremental assistance in terms of administration of justice to prevent the sidelining of matters by questions of process. The bill seeks to address some of the variance across Australian jurisdictions relevant to suppression and non-publication of orders. It has been suggested by stakeholders consulted in the preparation of this bill that some minor amendments to the suppression order regime and the explanatory memorandum in respect of WA family magistrates are necessary.

As I have said, the coalition supports the measures to improve the process of justice and rules designed to further progress open justice, including measures to improve access to justice with cost-efficiency. While we broadly support the measures introduced by this bill, the coalition reserves the right to introduce amendments to the bill in the Senate pending the outcome of the Senate committee's recommendations.

John Murphy (Reid, Australian Labor Party) Share this | Link to this | Hansard source

I call the Attorney-General for her summing up. In doing so, I would like to congratulate her on her promotion to that position.

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

Thank you, Madam Deputy Speaker Livermore. Last time I spoke here, in some excitement at my first bill as the Attorney-General, I was welcomed by the chair as the health minister. I think old habits die hard. Thank you for those congratulations.

I would like to thank the honourable members for Stirling, Blair and Solomon who spoke on this bill. I know that for some people this bill seems like it is just a procedural one. It does go to many procedures within our courts, but the reforms will have a noticeable and beneficial effect on the experiences of court users and they are therefore worthy of considered debate. I thank people for contributing in that light.

The Access to Justice (Federal Jurisdiction) Amendment Bill 2011 is an important step in the Labor government's efforts to make our judicial system responsive, accessible and efficient for all people who need its services. The courts must help to protect, and act impartially for, all participants in court processes whether they be one-off users in difficult circumstances, like a couple going through separation proceedings, or large corporate players utilising the courts to resolve commercial disputes. These reforms implement the practical recommendations from expert bodies such as the Australian Law Reform Commission and the Attorney-General's Department's Access to Justice Task Force, as well as bringing into the federal sphere model laws developed through the then Standing Committee of Attorneys-General. They go directly to addressing the points of aggravation experienced by court users and those wishing to report on court proceedings—that is, unnecessarily complex and costly discovery processes, a perceived overuse of suppression and non-publication orders, and unnecessary and wasteful litigation caused by vexatious litigants. By giving the Federal Court greater control over the costs of discovery, and clarifying that oral examinations can be used to assist in identifying which documents should be subject to discovery, we will support judges to manage and progress cases. By implementing the SCAG model suppression and non-publication order laws, we are also playing our part in ensuring nationally consistent rules are in place and in supporting open and transparent justice. I note, however, a matter that we will keep our eye on: the current concerns about the volumes and types of orders being granted. They are primarily at the state level; nevertheless, this does make our system more nationally consistent.

This bill will tighten up the scope of those suppression orders. Courts will have to specifically consider whether the order is really necessary and craft the order in as narrow terms as possible to achieve its objectives. The court must, when making a suppression order, take into account that it is the primary purpose of the administration of justice to safeguard the public interest. Open justice is part of ensuring we can do that. By establishing fair and understandable vexatious litigant rules we are also balancing the need to keep our courts accessible while ensuring valuable court time is not wasted on repetitive, unmeritorious claims at the expense of other users.

By amending the Administrative Appeals Tribunal Act to allow applications without up-front payment of filing fees and allow regulations to give the AAT the power to impose fees on government agencies if they unsuccessfully defend appeals, this government is demonstrating its absolute ongoing commitment that individuals should be able to seek review of government action. This bill is all about improving access to justice for all who need it. It contains practical, considered measures initiated and supported by experts in the field of court practice. Extensive consultation with court officers, users and other stakeholders has ensured that these measures will achieve their desired outcomes. I thank the parliament for its support.

Bill read a second time.

Ordered that the bill be reported to the House without amendment.