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

The Courts and Tribunals Legislation Amendment (Administration) Bill 2012 will change the administrative structures of the National Native Title Tribunal, the Federal Court, the Family Court and the Federal Magistrates Court. The specific structural changes proposed by the bill are the transfer of the National Native Title Tribunal's appropriation, staff and some of its administrative functions to the Federal Court; amendment to the Native Title Act 1993 to reflect the fact that the National Native Title Tribunal is no longer a statutory agency for the purposes of the Financial Management and Accountability Act 1997—it being subsumed into the Federal Court—and the formalisation of the merger of the administrative functions of the Family Court and the Federal Magistrates Court.

The bill implements recommendations of the Strategic Review of Small and Medium Agencies in the Attorney-General's portfolio, known as the Skehill review, which was publicly released in June 2012. The changes which affect the National Native Title Tribunal are probably inevitable as a result of the passage of the Native Title Amendment Bill 2009, which noted the primary adjudicative role of the Federal Court and sought to integrate the tribunal's alternative dispute resolution code with the court process. That bill had the coalition's support. As to the amendments affecting the Family Court and the Federal Magistrates Court, which has been changed to the Federal Circuit Court, the administrative merger occurred de facto in 2008 and 2009 in preparation for the government's planned abolition of the Federal Magistrates Court, which has now been abandoned.

The purpose to merge the administration of the Federal Magistrates Court with that of the Family Court had its genesis back in the days of the Rudd government, which sought to abolish the Federal Magistrates Court altogether and merge it into the Family Court. As we know, the initiative failed and the coalition policy was ultimately adopted by the immediate past Attorney-General, Ms Roxon. As the shadow Attorney-General, Senator Brandis announced during the 2010 election campaign:

One of the issues that has dogged this portfolio over the life of the Rudd-Gillard government is the fate of the Federal Magistrates Court. The Federal Magistrates Court was truly one of the success stories of the Howard government. It was established 1999 as a measure to enhance access to justice in the federal jurisdiction. Although it has jurisdiction over most matters arising under federal law, most of its work is in the family jurisdiction. The Labor government made a grave error of judgment when it sought to dismantle the Federal Magistrates Court. To deal with smaller cases quickly it is vital that there be a lower tier Commonwealth trial court. The coalition government will restore a second tier Commonwealth trial court to deal with smaller family, trade practices, industrial bankruptcy, tax and administrative law matters. It will be called the Federal Circuit Court. We expect it to become the principal trial court within the federal jurisdiction. Federal magistrates will be offered positions as judges of the Federal Circuit Court. The Federal Court of Australia and the Family Court will deal with the most complex trials.

That is a direct quote from the coalition policy.

The Federal Magistrates Court was established by the Howard government in 1999 in order to provide for timely, efficient and less formal adjudication of disputes in the federal jurisdiction. Since its establishment it has been very successful. In 2011-12 it finalised over 92,000 matters, which included family law, industrial, migration, admiralty, bankruptcy, administrative law and consumer protection. The court now deals with 85 per cent of all family law matters, up from 60 per cent in 2004. Eighty-three per cent of all applications filed are completed within six months, and 95 per cent within 12 months. It is a testament to the court's efficiency.

Despite this, the Rudd and Gillard governments have sought since 2008 to abolish the court. One of the first acts of the Rudd-Gillard government in the Attorney-General's portfolio was to commission the Semple review of the federal courts, which recommended that the Federal Magistrates Court be abolished and reconstituted as a separate lower division of the Family Court and the Federal Court. This plan, disclosure of which the government resisted throughout 2008, and most colourfully justified by reference to a dispute over biscuits in a tea room shared with the Family Court, was finally released in December of that year. The government accepted its recommendations in February 2009. However, these proposals received almost no support from any arm of the federal judiciary and none at all from federal magistrates, who themselves rightly feared that the culture of innovation and efficiency that it had built up to the benefit of all its stakeholders since its establishment would be lost in the more procedurally focused Family Court. The alternative proposal, the one represented by this bill, which the coalition announced in 2010, was widely reported to have the endorsement of the federal judiciary.

Last year the then Attorney-General conceded defeat and instead proposed that the court be maintained under a new name to reflect its expanded workload and jurisdiction. In doing so she has accepted the policy announced by the coalition in the 2010 election, including the very nomenclature the shadow Attorney-General proposed. The change of name which the coalition proposed and which the government has adopted is appropriate for two reasons. First, the Federal Magistrates Court is already a circuit court in the true sense of the word. It has 13 principal locations and 35 circuit locations throughout Australia. Circuit settings are regularly conducted in such locations as Broken Hill, Dubbo, Coffs Harbour, Alice Springs, Bundaberg, Ipswich, Maroochydore, Mount Gambier, Burnie, Ballarat, Mildura and Shepparton. In 2011-12 the court allocated approximately 145 weeks to its circuit program. This is an extremely valuable service allowing parties to have their matters heard and determined without the need to travel to major centres.

Second, having regard to the breadth and complexity and monetary limit of its jurisdiction, it now seems misleading to describe this body as a Magistrates Court. At its establishment it seemed an appropriate descriptor, inviting comparison with the quick and less formal state and territory magistrates. However the success of the model and the consequent expansion of its jurisdiction required a proper recognition of the work of its 61 judicial officers.

However—and this has always been the way for this government—there is a gap between rhetoric and reality. For 2011-12 the court reported an operating deficit of more than $3½ million. The court has reported ongoing pressure on its operational budget despite what it describes as 'significant initiatives' to reduce costs and generate efficiencies. It has been unable to manage its work on the funds that the government has provided to it without spasmodic emergency injections. On 14 December last year the Australian newspaper quoted the court's CEO, Mr Foster, as saying:

Over the past several years, the courts have been operating at a loss ...

Despite implementing many cost-cutting initiatives, the point had been reached where in order to balance the budget in 2012-13, it would no longer be possible to continue the provision of many existing services, such as maintenance of regional registries, circuits and the use of family reports in parenting cases.

Replacement of judicial officers could not be afforded without further impinging on other services.

In other words, what the government now recognises as the reason for the court's existence, its circuit program, was at risk as a result of the attrition of four years of a government seemingly hostile to its very existence.

Thankfully, the emergency funding has now been allocated, but this is no way to fund the judicial arm of government. The courts cannot be treated as a mere program to be funded or defunded depending on the way the political and budgetary whims are blowing. Senator Brandis wrote about this back in June 2012 when he said:

… all the federal courts have been running at a deficit and are projected to do so for the next four years.

The chief executives of the Family Court and the Federal Magistrates Court disclosed to the Senate Legal Affairs Estimates Committee last week that, in order to comply with Department of Finance stipulations that the courts bring their budgets back into balance, the already stressed services the courts provide will be cut back even further.

And in a move that will only make a bad situation worse, the budget announced increases in court filing fees -- the very threshold of access to justice -- by a total of $76.9 million over four years.

Incidentally, the description in the budget papers of this measure was penned in language of which Sir Humphrey would have been proud: "The government will reform court fees to better reflect the capacity of different types of litigants to pay. The reforms will send more appropriate price signals to court users."

And I believe that my distinguished colleague, the former Attorney-General, will be saying something more broadly about the use of the word 'reform' for such measures as these, and I would agree with him that that is a much overused word when you are talking about something that is just blatantly a price increase.

When you are increasing the price of the access to justice, then clearly that is not about enhancing that access to justice. To do this is really to proclaim to the world the Gillard government's deep indifference to freedom of information. Government senators used every procedural trick in the book to suppress production of the Skehill report, written by a former secretary of the Attorney-General's Department, which reads like a vivisector's guide to the future of the federal judiciary.

The Gillard government's attitude to accessible justice is to charge more and provide less. Not only does this make a mockery of the government's self-serving rhetoric; it reflects a more disturbing approach and a fundamental disrespect to the separation of powers. The courts are not an agency of the executive government and they should not be treated as such. They are a separate institution of government and they must be sufficiently resourced to perform their constitutional functions and preserve their constitutional integrity.

The coalition is deeply supportive of the work of the federal courts and their place within the Constitution of Australia. The work of the federal magistrates—or, as they shall soon be known, the judges of the Federal Circuit Court of Australia—has shown the value of the Howard government's vision of a court to provide the greatest possible access to justice in the federal jurisdiction.

As I have previously said, the CEO of the Family Court has also been the acting CEO of the Federal Magistrates Court since November 2008. Mr Foster has been examined in Senate estimates about the potential for conflict in the concurrent performance of these two roles, and he maintains that it has been working satisfactorily. However, both courts are operating in deficit and have been the recipients of urgent supplementary funding this year so that essential operations such as the circuit sittings that I mentioned previously can continue. In any environment where Mr Foster must consider when to rob Peter to pay Paul, a Senate committee inquiry will take the opportunity for more detailed consideration of the effectiveness of the joint administration and whether there is a sustainable funding model for these courts. That committee reports later on this month, and at that time the coalition will consider whether amendments are necessary. In the meantime, the coalition does not oppose the bill that we are discussing here today.

This bill has been referred, as I said, to the Senate Legal and Constitutional Affairs Legislation Committee. When that committee reports on 23 February, the coalition reserves the right to move amendments in the Senate based on what the committee findings might be. But, in the absence of that committee reporting at this stage, the opposition does support the passage of this bill through this chamber.

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

Philip Ruddock (Berowra, Liberal Party) Share this | Link to this | Hansard source

I do not speak often in relation to these bills but I do intend to make some observations about the proposals before us. I note that the member who is on our side, the shadow minister who spoke before me, prefaced my concern about the use of the word 'reform' for what are often changes. I note that the word 'reform' is very loosely used. When I looked at some of the statements as to what was being intended in this legislation, that was brought home to me. I saw some observations before the Senate committee summarising what is being done on this occasion.

Schedule 1 of the bill formalises the implementation of native title institutional reforms—I would say 'changes'—which commenced with amendments to the Financial Management and Accountability Regulations 1997 from July last year. It folds the tribunal into the Federal Court as a statutory agency and makes consequential amendments to the government's financial and annual reporting frameworks. The amendments remove the legal risk and provide clarity for agencies and stakeholders. The amendments not only generate savings but result in a better alignment and allocation of functions and a clearer focus of increasing the rate of claims resolution. These legitimate legislative amendments are supported by administrative arrangements such as a memorandum of understanding between the agencies to enable the tribunal to continue performance functions in a way that is consistent with its status in the independent statutory authority.

I make mention of that because I do have enormous respect for Graham Neate, who was the President of the Native Title Tribunal. I saw the role that the body carried out over a long period as being positive. I saw it as being the specialised body. I must say I was troubled, when I was attorney, at the way in which in the Federal Court there was often a desire by judges who bring themselves to these matters—sometimes frequently but sometimes not so often—to want to appoint people that they thought might mediate, and they would not always go to the Native Title Tribunal, the specialist body. I do not know why that was always sought in that way. I tried to have an inquiry into the better way forward, and the advice that was given to me at that time, which I acted upon, was to require the courts to use the Native Title Tribunal. Graham Neate is reported as saying that the tribunal had several Indigenous staff members and had built up extensive experience in resolving native title claims and that he hoped that this knowledge would not be lost. I thought they were very appropriate observations and comments. I suspect there is a degree of trying to reinvent the wheel under the guise of reform, which can, I think, jeopardise the ability to get the full value that you can out of a body with that experience.

I noted what my colleague the member for Blair had to say about the difficulties in getting resolution of native title claims. My experience was with people who were involved in this area. The present High Court Chief Justice was involved with me, when he was a Federal Court judge, in looking at ways and means in which we could expedite consideration of these matters. One of the major problems with the large number of claims that had to be dealt with was the inadequate number of people with anthropological experience able to give advice to the states and to give advice to the applicants to enable matters to be progressed quickly. I do not know whether that has changed. I understand there were very few universities that were actually training anthropologists and producing that expertise. I know the desire to get these matters resolved and resolved quickly, but I do not think it is always the institutional arrangements which we are fiddling with. Often it is matters that we do not even give attention to. The need for anthropological expertise is something that I attach a great deal of importance to.

I note that the departmental officials commenting on these matters spoke of schedule 2 as amending the Family Law Act and the Magistrates Act:

… to ensure that these acts are compatible with the courts operating under shared administration with a single chief executive officer. The Family Court and the Federal Magistrates Court have been operating under shared administration, including a single chief executive officer, since 2009. The move to a shared administration was a joint decision taken by the two courts. Mr Skehill found that the shared administration arrangements have been a genuine success. As a result, he recommended that the previously proposed restructure of the Family Court and the Federal Magistrates Court should not proceed but that the shared administration arrangements be formalised.

That is what we are dealing with in relation to this legislation. The legislation, as the shadow minister said, is not opposed at this stage but there are Senate committee deliberations; there may be amendments that suggest themselves out of that which we are not foreclosing at this time.

I turn to the comments of the member for Blair because he is an experienced family law practitioner but he seemed to have a fond view of the Family Court under former Chief Justice Nicholson. He said that as a practitioner, but there are mixed views about the performance of the court involving practitioners. I think it has a lot to do with the way in which the court was first established.

I am going to tell you a little story about a former judge from Sydney, Ray Watson. My father taught him at Penrith High School. He was an adviser to Murphy as the Attorney-General in relation to the Family Court Act, and Ray Watson, I think, saw himself as the real architect. He has been unwell in recent times and is very fragile in a nursing home in my electorate. I fondly remember him giving some advice when I chaired a select committee reviewing the Family Law Act. He said I should go and see what happened in Alberta, Canada. There, I would find a Family Court that had court counsellors, and I would understand the model he had developed for our Family Court with court counsellors. He argued very strongly the case for the Family Court to be managing the process of trying to get independent advice on family circumstances through the court counselling model.

There was a magistrate in Sydney called Reg Bartley who ran the Children's Court, often dealing with family issues before they would become real issues before the Family Court. He would say to me: 'I can never get a counsellor from the Family Court because they hang onto them; they are their own. They have all the time to be able to use them and they'll use them fully, and we can't get access.'

I went to Canada and met Judge Marjorie Bowker of the Family Court of Alberta, and I discovered something: the Family Court of Alberta was the equivalent of our Children's Court of New South Wales. Divorce was not dealt with before the Family Court of Alberta: it was dealt with in the Court of Queen's Bench. I was surprised Ray Watson did not know all of this. When I came back it struck me: here is the most junior court, the Magistrates Court, dealing at a grassroots level with these issues that needed the help, and the Family Court was building up a bureaucracy of its own.

As a practitioner I was never one who would want to argue a case if it were possible to settle it. I regret that not all practitioners see it the same way. Some see these issues as matters that you should pursue until you have spent the last dollar that your client has. I do not think it does the profession much for its reputation.

For me, I wanted to see more practitioners who were trying to find alternative dispute mechanisms. I very strongly supported the setting up of the separate bodies to advise people on family issues and requiring people to get counselling before they even got into the court. In my view, if you were going to try and resolve an issue you needed to do it before people became entrenched. I think we do have some cultural problems in our family law system and I am not sure that the Family Court of Australia, which deals with a very small proportion of the case loads now, fully understands that. I think the complexity that has developed, the legalism that has been brought into family law disputes, is very troubling.

I very much disagree with the member for Blair in relation to the observations he made about the way in which the Magistrates Court has worked. I think it has been extraordinarily successful. You only need to look at the numbers of cases that are resolved before the Magistrates Court to understand that it has played a very significant role. It may well be that the Family Court has been so structured that it is only receiving the most complex of all the issues that the courts might have to deal with; it may be that those are the only ones that are getting before it. But, actually, when you look at the workloads you would be surprised: if you go into Sydney most of the matters are dealt with before the Family Court; if you get out into the suburbs they are being dealt with by the magistrates.

I think we have been greatly served and I think the magistrates do feel a little aggrieved that this tremendous load that they have assumed, which they have dealt with very successfully, has not been fully recognised. I think the renaming of the court as the Federal Circuit Court will help in maintaining that degree of commitment that the magistrates have brought to the process of dealing with family law issues.

I hope, in the way in which these issues are being dealt with, we are not seeing our institutions attacked for the purposes of delivering administrative savings because the government's priorities for expenditure are elsewhere. I saw some news reports today suggesting, for instance, that there has been a very significant reduction in numbers of Federal Court judges. It seems to me that the reduction in Federal Court judges is occurring in order to produce savings. It was interesting to me that the Chief Judge of the Federal Court—about to retire and be appointed as a member of the High Court of Australia—was simply drawing attention to the potential, if it continues, for the court and its standards to be diminished. I think that would be very unfortunate.

There have been some issues of conflict between the magistracy and the Family Court. I would like to commend all of our courts because I think the separation of powers and the quality of our justice are particularly outstanding. But I do not think the way in which the government is pursuing reforms simply for the sake of change, if it impacts adversely on these institutions, is in our national interest. I do not speak often in these matters, but I have enormous respect for the people that I dealt with when I was Attorney and I am troubled about some of the pressures that they have been placed under as the government is seeking to get reductions of expenditure through some of the mechanisms that we have seen, even introduced in this legislation, which we are not opposing.

Tony Windsor (New England, Independent) Share this | Link to this | Hansard source

I thank the Father of the House. I now call the member for Moreton.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I also rise to support the Courts and Tribunals Legislation Amendment (Administration) Bill 2012 and to thank the Father of the House, the member for Berowra, for his contribution—particularly in touching on the native title implications but also that history of the Family Court. I know, as someone who was here pre Mabo and looking at it from today, that it has been an incredible journey for the parliament and the nation, so I thank him for his contribution.

I am less inclined to thank the member for Stirling for his contribution—certainly not when he started moving on to what the opposition spokesperson Senator Brandis had to contribute on this piece of legislation. For me, Senator Brandis is to appropriate commentary on sub judice matters what Mal Meninga was to celebrity political careers: he did not have a lot to contribute—although as a member from New South Wales, Mr Deputy Speaker Windsor, you would appreciate that Mal Meninga, having given up his political career, then moved to Queensland and coached us to seven State of Origin wins in a row. I am sure you would appreciate that he did have something to contribute. Politics' loss was Queensland's gain. But I wonder about the role of the opposition spokesperson Senator Brandis. It is a bit of a scary proposition, the idea of him being the nation's first law officer—big shoes to fill for those opposite. I am not sure that he would be able to. At least he would not have to give advice to himself; he would have a department to give him advice, rather than that Brandis on Brandis stuff which he is often keen to quote.

The bill before the chamber proposes reforms to the administrative structures and processes of the National Native Title Tribunal, the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court of Australia. These reforms have been presented as a means to improve the operations of the affected bodies and achieve savings. Both the Senate Legal and Constitutional Affairs Committee and the Social Policy and Legal Affairs Committee that I chair have supported—unanimously, I understand—the legislation's intent. The bill implements recommendations of the Skehill review of small and medium agencies in the Attorney-General's portfolio. The bill will make significant improvements to the administrative structures and processes of the Family Court, the Federal Magistrates Court, the Federal Court and the National Native Title Tribunal and will allow these agencies to realise significant savings through reduced duplication and more efficient administration. In particular, the bill makes legislative amendments to facilitate the merger of the administrative functions of the Family Court of Australia and the Federal Magistrates Court of Australia—which I understand is already happening—including by recognising a single chief executive officer position for the two courts. It will facilitate the transfer of the National Native Title Tribunal's administrative functions, appropriations and staff to the Federal Court of Australia and reflect that the National Native Title Tribunal is no longer a proscribed agency for the purposes of the Financial Management and Accountability Act 1997. This transfer is widely supported by stakeholders, as I saw both in my capacity as chair of the Social Policy and Legal Affairs Committee and its engagement and in other research. It is widely supported as a means to speed up native title consent orders and determinations, which would be a good thing for this nation. It has also been the subject of extensive transition planning to ensure no current matters are delayed. The Skehill review commented that the continuing existence of the NNTT could be seen by stakeholders as being very important, and abolishing it without being able to demonstrate a better substantive outcome could jeopardise the functioning of the native title system as a whole; therefore, the report recommended that the NNTT remain as a separate entity although its mediation function resources should be transferred to the Federal Court.

This bill is predominantly finalised in providing the legislative authority for a number of arrangements already in place or well advanced. As I said, the courts, the tribunal and the Attorney-General's Department have been working together over some time to implement the reforms. I would particularly like to commend them on their consultation with their employees. It was a very well-managed change process. I know it can be quite stressful when the cultures of different organisations come together but it appears to have been managed very well with a lot of consultation with employees—although I am also hopeful of a later external review to be undertaken by the Australian National Audit Office at an appropriate point in time. This would provide reassurance that the anticipated benefits in terms of efficiency and effectiveness of the affected courts and tribunals have been achieved, something touched on by the Father of the House in his speech as well. Obviously, this is in addition to the annual reports and Senate estimates. My committee also asked the Attorney-General to direct the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, and his team to report on the adequacy of the services being provided by the National Native Title Tribunal. I could talk about this in a lot more detail, but I see the member for Braddon and the parliamentary secretary in his capacity of representing the Attorney-General is here—the man more suited than anyone else in this parliament to speak like Rumpole of the Bailey. I look forward to hearing from him and I commend the legislation to the chamber.

Sid Sidebottom (Braddon, Australian Labor Party, Parliamentary Secretary for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I speak on behalf of the new Attorney-General, the Hon. Mark Dreyfus, whom I would like to congratulate. I thank the four honourable members for their contribution to this debate. While changes to the administrative structures of the federal judicial and tribunal may not capture the imagination in the way some other bills do, it is nevertheless an important piece of legislation—as other speakers have already outlined—to ensure our courts and tribunals function as efficiently as possible. The Family Court, the Federal Magistrates Court—soon to be called the Federal Circuit Court—the Federal Court and the National Native Title Tribunal all play a vital role in Australia's decision-making system. These amendments streamline their administrative processes while ensuring they retain their distinctive identities, and these reforms implement recommendations made by Mr Stephen Skehill in his recent review of all the Attorney-General portfolio's small and medium agencies.

By facilitating the transfer of the Native Title Tribunal's appropriations, staff and some of its administrative functions to the Federal Court and by formalising the merger of the administrations of the Family Court and the Federal Magistrates Court, the government's aim is to ensure the focus of these organisations is on court and tribunal users. In combination with the additional funding of $38 million going to our courts—which the former Attorney-General announced in September—these changes will put our federal courts on a much sounder fiscal footing. Our courts and tribunals will be able to focus much more closely on maintaining and improving services—whether that be regional circuit work, native title mediations, claims determinations and future act activities, finalisation times and registry services.

On behalf of the Attorney-General, I thank the Chief Justices of the Federal and Family Courts, the Chief Federal Magistrate and the President of the NNTT for their assistance and cooperation throughout this process. The Family Court and the Federal Magistrates Court have worked cooperatively since 2009 to combine their administrations, an initiative recognised and supported by Mr Skehill in his report. As the courts' initiative has been successful, the bill's purpose is to clarify and formalise this arrangement, rather than to fundamentally change the way the courts operate. The bill will allow the courts to make significant improvements to their administrative arrangements, while ensuring that courts retain their separate and distinct identities. During the consultation for this particular bill, the Family Court Chief Justice and the Chief Federal Magistrate raised some further potential improvements to the structure and processes of their courts. The government is maintaining an open dialogue with the courts about possible future reforms. It is clear that such reform is an iterative process, and we need to ensure that courts keep pace with the community they serve.

But the government's immediate priority is on reforms that directly benefit court users through efficient, swift and responsive courts. The NNTT changes, which this legislation supports, are more recent but have been conducted in a similarly positive and expeditious manner. Amendments to the Financial Management and Accountability Regulations 1997 that commenced on 1 July 2012 consolidated the NNTT with the Federal Court as a single prescribed agency. At the same time the NNTT's budget appropriation and its corporate services staff were also transferred to the Federal Court. This bill will finalise this implementation process.

These changes are expected to generate $19 million in savings over the next four years by reducing unnecessary duplication across the courts and the NNTT. In the case of the NNTT, the changes enable it to work more closely with the Federal Court, with respect to priorities, reporting and the performance of the complementary and independent functions, ultimately achieving better native title outcomes for all native title stakeholders. The amendments also complement the government's 2009 reforms to the Native Title Act, which gave the Federal Court a central role in managing native title claims. Since those reforms the rate of consent determinations has increased almost fourfold. In discussions on the bill, the heads of jurisdiction and the president of the NNTT recognise the need to progress structural change quickly. This is an important reform, but they understand that it is a means to an end, not an end in itself. The government's and the courts' joint focus is on how to improve functionality and users' experiences when they interact with the courts and the tribunal.

This bill represents an important part of the government's court reform package which includes, amongst other things: implementing the name change from the Federal Magistrates Court to the Federal Circuit Court and retitling magistrates as judges to better reflect the court's role in the federal judicial system; bedding down the judicial complaints framework which was recently passed by parliament to provide a more transparent and understandable way to raise complaints about judicial officers; ensuring the additional $38 million in court funding goes directly to maintaining and improving court services; implementing new court fee levels to better reflect capacity of different litigants to pay, such as higher fees for large corporations and government departments, balanced by the reintroduction of fee waivers and exemptions for disadvantaged litigants; and, to complete, passing 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.

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