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

This bill makes amendments consequent to the passage of legislation last year to change the name of the Federal Magistrates Court to the Federal Circuit Court of Australia, and the title of federal magistrate to judge. The bill makes amendments to Commonwealth legislation to reflect the new name of the court and title of federal magistrates. It updates relevant references and legislation consistent with the new name of the court and title of federal magistrate as judge or chief judge as the case may be. The bill also makes bulk amendments to substitute Federal Circuit Court or Federal Circuit Court of Australia for Federal Magistrates Court wherever it appears in the act listed in schedule 2. It also makes contingent amendments to a number of bills which are currently before parliament that make reference to the Federal Magistrates Court or federal magistrates. Commencement of these contingent amendments will be subject to passage and commencement of the relevant bills.

The Federal Circuit Court of Australia Legislation Amendment Bill 2012 was passed so that the new name accurately reflects the court's role. The change in name will also highlight the valuable service that the Federal Circuit Court provides to regional Australia through its regular court circuit program. Currently, the Federal Circuit Court is the only federal court that regularly conducts regional courts, which in turn alleviates the burden of litigants having to travel to major cities to have legal matters heard. After the name change commences, it is important that these new amendments come with specific provisions in order to preserve existing arrangements and ensure a smooth transition.

The Federal Magistrates Court was established by the Howard government in 2000, in order to provide for timely, efficient, and less formal adjudication of disputes in the federal jurisdiction. Since this time, the range and amount of cases heard by the Federal Circuit Court greatly increased, highlighting the vital role that the court plays in Australia's federal judicial system. Although the court deals mostly with immigration, bankruptcy and family law matters, it also deals with issues as diverse as water efficiency and telecommunications interception and access. This demonstrates the court's broad jurisdiction. Despite the success of the court, Labor have sought, since 2008, to abolish the court and reconstitute it as separate, lower divisions of the Family and Federal Courts. This was strongly opposed by the Federal Magistrates Court and the Federal Court and successfully resisted by the coalition. The former Attorney-General, the member for Gellibrand, conceded defeat and instead proposed that it be maintained under a new name to reflect its expanded workload and jurisdiction. In doing so, Labor accepted the recommendation of the federal judiciary, which itself adopted the policy announced by the coalition in the 2010 election.

The bill makes necessary amendments to update references about the Federal Magistrates Court and the Federal Circuit Court of Australia across all Commonwealth legislation. While I am speaking on this bill I would also like to take the opportunity to recognise the invaluable work and dedication that the federal magistrates have provided over the past 13 years, in providing justice to people all over the country. I therefore commend the bill to the House.

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

The federal Labor government has made a commitment to improve administrative outcomes, and make sure that justice is more accessible and transparent as it meets Australians. The majority of Australian families who separate do not go anywhere near the Family Court, and even those who go to court in relation to family law matters are more likely to go to the Federal Magistrates Court, yet the Federal Magistrates Court has not quite got the stature and has not received the public recognition that is so thoroughly deserves for the dedication and diligence of those lawyers who are serving as federal magistrates.

What we have done—and it has a long history, as the previous speaker said—is have a look at this issue through the Skehill review. We have also listened to stakeholders—magistrates, judges, lawyers, law societies and bar associations, including Chief Federal Magistrate, John Pascoe AO, on behalf of the court—and asked them to take into consideration the changes that we wanted to make.

The Federal Magistrates Court, as a court, has much jurisdiction and it has grown imperialistically since it was created by the Howard coalition government.

In many ways it is a court that was created out of frustration, hostility and anger, because the Howard government had a very testy relationship with the then Chief Justice of the Family Court, Alistair Nicholson. I think in large part many of the challenges that the Family Court faces could have been resolved by way of rules, regulations and additional funding by the Howard government, but they chose to go a different way. I am sure that less complex cases could have been dealt with by the Family Court. In fact, that was a process by way of the appointment of judicial registrars and the like which dealt with matters in relation to mediation and also interim hearings in less complex matters. But the Howard coalition government chose to create a federal magistracy.

There are now over 60 federal magistrates around the country and they get paid quite well—a salary well in excess of $300,000. They are, according to the Australian Constitution, judges. That is not recognised. They are robed. I have appeared in hundreds, if not thousands, of cases in the family law jurisdiction before federal magistrates. In my experience they are generally fine lawyers and dedicated servants. They work very hard indeed across the country, and I appreciate the fact that they do travel around the country. Too often we find that Family Court judges in particular are based in urban areas like Brisbane Sydney and Melbourne. But federal magistrates now go to places like Ipswich, where they deal with that jurisdiction more expeditiously, in a more timely fashion, and deal with the matter at less cost to the litigant. I found that particularly in my practice as a lawyer before I was elected to parliament in 2007.

The court's jurisdiction covers a lot of areas. It does not just cover family law. It covers bankruptcy, migration and the like. Indeed, when it was first created it could not deal with what we used to call custody cases; it could only deal with access. Now, federal magistrates' final hearings are dealt with in two days or less, and it certainly costs litigants a lot less if they have a matter dealt with in the Federal Magistrates Court as opposed to, say, the Family Court.

I know that there has been an issue in relation to superannuation, but I will not go down that road. Federal magistrates' income is paid not by way of a 60 per cent pension, as for judges, but by way of a 15.4 per cent contribution. And I know there has been significant litigation in that regard.

The government has responded to the stakeholders and looked at what the two reports have said in relation to this issue—in particular, the Semple review, and the Skehill review—and the outcome is the legislation that was passed in 2012 and now this legislation. These consequential amendments are about making sure that federal magistrates have the title of judge and that there is some continuity in terms of consistency of legislation, particularly the amendments in relation to part 5.3 of the Criminal Code, to reflect the new names and titles. Of course, those consequential amendments were not part of the original bill. But there was consultation in relation to the states and territories and, as a consequence of some intergovernmental agreements concerning counterterrorism, the amendments take place today.

I recognise the importance of this court. Like a magistrates court, it deals with Australians at the grassroots level. Most Australians never see the High Court, the Supreme Court or the District Court. They do not get charged with criminal offences. They do not usually get involved in car accidents or have civil disputes or commercial disputes that require the engagement of a silk or a junior counsel. But they often have situations where they or someone else they deal with has been bankrupted; they have got a claim in bankruptcy because one of their creditors or debtors has been involved in a commercial dispute. They might get involved in court. They might separate and need their dispute in relation to parenting arrangements resolved. There is a very low level of court in that sense.

I do appreciate that people need to show respect, and the idea of the magistrates being called judges does show that respect. I also appreciate the fact that they have taken on the practice of robing, that federal magistrates sit there in a robe. I think that is fine. I am not always comfortable with the idea that senior counsel should wear robes and wigs in jurisdictions—I personally have never favoured that—but I do like the idea that there is respect.

I think the amendment in this legislation—and in the previous legislation—is a good one because having a Federal Circuit Court of Australia clarifies the court's role: it is a court for the regions, not just for the capital cities. I think the recognition that they are judicial officers under chapter III and the fact that this legislation recognises that they are judges—and that the previous legislation recognises the circuit nature of the jurisdiction and the court presiding—is doing the right thing by all Australians. I commend the legislation. I think it is a good piece of legislation. I commend the states and territories for the intergovernmental agreement in relation to 5.3 and the criminal aspects. In that regard, I am very pleased to support this legislation.

Proceedings suspended from 13:01 to 16:01

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

I thank honourable members for their contribution to this debate. The Federal Circuit Court of Australia Legislation Amendment Act 2012 passed the parliament late last year. It will rename the Federal Magistrates Court as the Federal Circuit Court of Australia and will change the title of federal magistrate to judge. This bill, the Federal Circuit Court of Australia (Consequential Amendments) Bill 2012, operates together with the act and makes consequential amendments to the Commonwealth statute book to reflect the court's new name and the new title of federal magistrate. This bill (inaudible) a smooth transition to the new name without altering (inaudible). The government will commence this bill concurrently with the Federal Circuit Court of Australia Legislation Amendment Act 2012 so that changes are implemented consistently across all relevant legislation. The new name, the Federal Circuit Court of Australia, and the new title of judge better captures the court's modern role and properly reflects the important services that the court provides to rural and regional communities through its program of regular court circuits.

I turn to some comments that have been raised by honourable members in the course of the debate. In particular, the member for Stirling commented on the government's decision to not proceed with the restructure of the Family Court. The government's position was rightly informed by the Skehill strategic review of small and medium agencies in the Attorney-General's portfolio. The government accepted the Skehill report's recommendation that the restructure not proceed as the shared administration between the Family Court and the Federal Magistrates Court, in place since 2009, had already generated efficiencies and strengthened court operations.

The member for Blair, who is again with me in the chamber, commended the important circuit work undertaken by the court for regional communities. I agree with the member for Blair's comments. To illustrate the extent of the court's program of regular court circuits, in the 2011-12 financial year the court circuited to 33 rural and regional locations and spent the equivalent of approximately 145 weeks in federal magistrate hours hearing matters in regional areas.

The changes implemented by this bill form an important part of the government's broader court reform package, which also includes bedding down the judicial complaints framework that was passed by parliament late last year; providing more transparent processes for handling complaints about judicial officers; injecting $38 million over four years to the courts to ensure that they can continue to deliver key services, including regional circuit work; implementing new court fee structures to better reflect the capacity of different litigants, such as large corporations and government departments, which are balanced by the reintroduction of fee waivers and exceptions for disadvantaged litigants; and introducing legislation to establish the new Military Court of Australia to deal with serious service charges against ADF personnel. I commend the bill to the House.

Question agreed to.

Bill read a second time.