Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

As Senator McLucas has just stated, the Civil Law and Justice (Omnibus Amendments) Bill is an omnibus bill. It primarily amends the Administrative Appeals Tribunal Act 1975, the Bankruptcy Act 1966, the Evidence Act 1995, the Federal Circuit Court of Australia Act 1999, the Federal Court of Australia Act 1976 and the International Arbitration Act 1974. It makes consequential amendments to a number of other acts. As the Senate was informed during the second reading speech by Senator Fifield, this bill makes minor and technical amendments to provide more clarity in the legislation, correct legislative oversights and amend obsolete provisions.

While most of the provisions are uncontroversial and stakeholders do not have concerns about most of the bill, the amendments to the Federal Circuit Court of Australia Act 1999 relating to the use of force did attract some attention. These amendments provide an arrester, who is authorised by the act, or a warrant issued under the act or the rules of court, with the power to use such force as is necessary and reasonable in the circumstances to enter premises to execute a warrant. The explanatory memorandum states that the new power is reasonable and proportionate to the objective of ensuring that an arrestee is able to be arrested and brought promptly before the court where they may otherwise attempt to evade arrest by staying inside premises.

We must be mindful, of course, that the use of force must always involve the least amount of force that is necessary to achieve the objective. In this context it is worth noting that the new section 113A(4) of the Federal Court of Australia Act provides safeguards which prevent arresters from using more force than is necessary in the course of arresting an arrestee. For example, it includes a provision that the arrester must not in those circumstances use more force or subject the arrestee to greater indignity than is necessary and reasonable to make the arrest, and also must not do anything that is likely to cause the death of or grievous bodily harm to the arrestee unless the arrester reasonably believes that doing that thing is necessary to protect life or prevent serious injury to another person. We acknowledge the safeguards which are contained in the bill, particularly in relation to force and indignity.

The bill also makes amendments to the Federal Court of Australia Act 1976 to streamline and enhance processes relating to jury empanelment and the pretrial process for indictable offences. We welcome these amendments, which we believe will assist the Federal Court. It is, however, worth pointing out that whilst the last federal budget did increase funding to the Federal Court, the Family Court and the Federal Circuit Court, assistance to people appearing before these courts has been described by bar associations and law societies as being in crisis due to chronic underfunding of legal aid commissions in Australia. It is clear that, when a person is unrepresented in a civil or criminal trial, substantial resources of the court are expended assisting these people. While we support courts providing this support to unrepresented people, the Law Society of Australia has stated that this 'extends the length and cost of trials and significantly increases the prospect of a mistrial or miscarriage of justice'. Where legal assistance is denied to people, of course it disproportionately impacts on people with disability, unemployed people, single parents, Indigenous people and those living in regional Australia.

In the context of this discussion, it is worth making the point that the government is yet to respond to a Productivity Commission report recommending that it add about $120 million a year to the legal aid frameworks in this country. That report from 2014, Access to justice arrangements, recommended that each year $200 million should be added to legal assistance services by federal, state and territory governments, and that the federal government should contribute some 60 per cent of this amount, to maintain front-line legal assistance services and allow about 10 per cent of households to be eligible for legal aid, which of course is in line with the proportion of disadvantaged Australians.

While the government should get credit for provisions of the bill that we are currently discussing, which will ameliorate some of the pressures on Australia's court system, it also, equally, needs to accept criticism for its very tardy response to the Productivity Commission report. The Greens certainly express our disappointment that that new funding recommended by the Productivity Commission has not been made available. If it were available it would not only improve access to justice for many disadvantaged Australians; it would also take significant pressure off our courts and speed up legal processes in this country. In this context, it is absolutely reasonable to observe that justice delayed can be justice denied. There are other issues around delays in our legal system. It is worth pointing out that people can be remanded in prison for longer periods of time without having access to final determinations on their matters due to legal aid cuts.

Whilst we make those points, we do not want to distract unnecessarily from the fundamental purpose of the Civil Law and Justice (Omnibus Amendments) Bill, which is to make minor and non-controversial reforms to a number of pieces of Commonwealth legislation that currently exist. The Greens will not be opposing these matters.