Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

I place on record these remarks as a basis for the government’s opposition to the amendment proposed by Senator Ludwig. Before I do so, I think it is important that I reject any notion suggested by Senator Ludwig that the government has in any way insulted federal magistrates by implying that these areas are too complex for federal magistrates to handle. The federal magistrates have done, and are doing, a fantastic job in the administration of justice in this country. I want to place on record the government’s appreciation and recognition of the work the federal magistrates are doing. This was, of course, recognised when former Chief Federal Magistrate Diana Bryant was elevated to Chief Justice of the Family Court of this country. I think that the work she did in relation to federal magistrates in this country was outstanding, and that good work has been continued by Chief Federal Magistrate Pascoe and other federal magistrates. Indeed, the Remuneration Tribunal has recognised the great work they do and the heavy workload they have by providing a loading of remuneration. So at the outset I want to make it abundantly clear that the Australian government acknowledges the very good work that is done in the Federal Magistrates Court in this country.

I turn to the amendment at hand—that is, that the Federal Magistrates Court should have jurisdiction in relation to cases relating to sections 46 and 46A of the Trade Practices Act. In the March 2004 report, The effectiveness of the Trade Practices Act 1974 in protecting small business, of the Senate Economics References Committee the opposition members of that committee recommended that the jurisdiction of the Federal Magistrates Court be extended to enable it to deal with cases involving sections 46 or 46A where section 83 of the Trade Practices Act is relied upon. Section 83 provides that a finding of fact by a court made in certain proceedings under the Trade Practices Act may be relied upon as prima facie evidence of that fact in other proceedings under the Trade Practices Act. The thinking there is that, by virtue of relying on facts previously found, it would make the matter simpler and less lengthy. But I stress that the committee report was by a majority of non-government members, because the coalition members did not support that.

In its response to the committee’s report, the government did not support the more limited proposals of giving jurisdiction in section 46 cases where section 83 is relied upon. The government considered then, as it does now, that section 46 and 46A cases, even those relying on section 83 of the Trade Practices Act, are likely to raise issues that are complex and more appropriately considered by the Federal Court. The Federal Magistrates Court was established to deal with less complex issues, as I stated earlier. That is perhaps conveniently described as cases that will take two days or less of hearings. That is, of course, designed to free up the resources of superior courts.

To give you some idea of the complexity of section 46 cases, first instance hearings in the major case of the Australian Competition and Consumer Commission and Boral Ltd ran for 23 days. In the NT Power Generation Pty Ltd and Power and Water Authority case, the hearings ran for 55 days. In the Australian Competition and Consumer Commission and Rural Press case, the hearings ran for 17 days. There are other examples. So what I would stress to the committee is that this amendment would confer jurisdiction on the Federal Magistrates Court for cases that are manifestly unsuitable for that court when you look at the rationale of why it was set up.

The government’s view is in no way in relation to the competency of the federal magistrates—far from it. I have already stressed that the government appreciates their great work and recognises the great contribution the Federal Magistrates Court makes to the administration of justice in this country. What I am saying is that we would have a system that would then be tied up with lengthy cases—a system that was designed to deal with those cases that can be dealt with more quickly. Of course, efficiency is an aim in the administration of justice in these times, when we find people are more litigious and matters are more complex—and a very important aim, at that. That is the reason for the government’s rejection of this amendment.

As for allowing small business access to a cheaper, simpler process in relation to section 46 of the Trade Practices Act, can I say that certainly small business would not welcome a system that became bogged down with lengthy cases. We have to put in place a system that is efficient and can provide those benefits and ensure that it remains. Small business would not benefit from a system which was hijacked, if you like, by cases with the sort of duration of those I mentioned, which is indeed lengthy. That is quite the opposite of what we are intending for the Federal Magistrates Court. For those reasons the government opposes the amendment, and I commend the bill as it stands to the committee.