Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

At the outset I thank Senator Barnett for allowing me to made a brief and short contribution on the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008. The coalition support this legislation. We were minded to support the amendment that was to be moved by Senator Bob Brown. That amendment would have required the government to maintain the full Federal Court Registry in Hobart as it has existed for some considerable period of time. The amendment proposed by Senator Bob Brown has great merit, and I can indicate that as a coalition we will be supporting it in the future; however, the Attorney-General has indicated to us that, if the amendment were to be supported, the government would not be accepting that amendment and the legislation would then bounce between this place and the House.

The bill we are debating provides the Federal Court with the criminal jurisdiction to deal with the criminality of cartel behaviour under the Trade Practices Act. Senator Bob Brown’s amendment is very meritorious and we fully support it, but on balance, having given consideration to the matters at stake, we think the criminal jurisdiction aspect of the Federal Court that deals with the criminality of cartel behaviour is a matter that should take precedence over the issue of the Hobart Federal Court Registry.

It is for that reason that we have now reluctantly withdrawn our support for Senator Bob Brown’s amendment—which I trust he has been advised of because I rang his office indicating that—having initially indicated our support. We have withdrawn our support only because of the dogged approach by the Attorney-General and the Labor government, who said that they would vote against an amendment to this legislation to continue the full Federal Court Registry facilities in Hobart. The Labor Party are now on record saying that they would vote against such a proposal and, what is more, that they would be prepared to delay the criminal jurisdiction bill on that basis. I must say that it shows an unfortunate trend with this arrogant Labor government that they will seek to block any good idea and even hold up very important and vital legislation. Therefore, as a halfway house, we the coalition have decided to move a second reading amendment. I move the second reading amendment standing my name:

At the end of the motion, add:

               but the Senate calls on the Government to ensure that:

             (a)    at least one Federal Court Registry in each state is staffed on a full-time basis; and

             (b)    the complement of staff in each such Registry includes a full-time Registrar.

Senator Bob Brown would undoubtedly be well acquainted with that wording because it is largely plagiarised from the amendment he was proposing to move in the committee stage of this bill. I indicate as a former practitioner in Hobart that the Federal Court Registry and the work that it did, especially under the former registrar, Mr Alan Parrott, was exceptional. The numbers and the processing of Federal Court matters were second to none in the jurisdiction. When we as a Senate passed a motion requesting that these facilities be maintained in Hobart, we had a letter from Chief Justice Black which, with respect to His Honour, did him and the Federal Court no credit where it was suggested that with less they could achieve even more, that by getting rid of a full-time Federal Court registrar in Hobart they were somehow going to improve the numbers beyond that which they already were. Quite frankly, it defies logic and any rational thought how that could possibly be achieved. Of course, if the Federal Court could achieve better with less in Hobart, one has to ask the question why they cannot achieve better with less in all their other registries around the nation.

With those few words I indicate that we as a coalition are determined that, on the next occasion legislation comes along, we will be moving—and Senator Barnett will talk about this in more detail, given his excellent contribution to the Senate Standing Committee on Legal and Constitutional Affairs and to the access to justice bill—an amendment or, indeed, if Senator Brown were to again move his amendment in relation to that bill, we would be minded to support it. Our concern is that the government have refused any amendment on this occasion to stop the commencement of the criminal jurisdiction bill, which we find to be, in effect, blackmail. They do hold the whip hand in relation to that so we reluctantly accept their position, but we will be persisting with our second reading amendment and then will be supporting a fully-fledged amendment, come the access to justice legislation. I once again thank my colleague and friend Senator Barnett for allowing me to speak before him.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Excuse me, Senator Barnett, you are standing.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I am happy to take a point of order, if you would like, Mr Acting Deputy President. I was on the speakers list and I wonder whether you have that list.

The Acting Deputy President:

I do have that list. I am aware that you are next on the speakers list, Senator Barnett, but I was adopting the convention of going to a representative from a party other than the opposition.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Mr Acting Deputy President, can I help here? I do not mind. I am very happy for Senator Barnett to go next, and then I will go after him.

The Acting Deputy President:

Thank you. I just want to make the point that, rather than following the list, which is advisory, I was following what I understand to be the practices of the Senate.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I thank Senator Bob Brown for his indulgence. I note that there is an important speech happening in another chamber which is obviously of great interest to members of the coalition. In that regard, I will be as brief as possible. In speaking to the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008, I firstly associate myself with the comments of Senator Abetz and will speak to those aspects of the bill shortly.

Initially, I want to say that the Senate Standing Committee on Legal and Constitutional Affairs delivered a report in March 2009 and provided details in that report with respect to our views on this bill. It is primarily a technical and administrative bill which has the effect of allowing the Federal Court of Australia to exercise indictable criminal jurisdiction which will be given to the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2009. As senators would know, that bill was subsequently passed, so now we are trying to put into operation measures that would allow that bill to be fully and properly implemented.

We held public hearings in Melbourne and Canberra over several days. I want to place on record my thanks to the Senate committee secretariat for their help and assistance and for their good work in delivering a tremendously well put together report. I particularly want to thank the Secretary, Peter Hallahan, and Monica Sheppard and Cassimah Mackay for their work. This is a really good example of where Senate committees work tremendously well. We delivered a report with eight recommendations and those recommendations in substance have now been taken on board by the government. The government has listened, has responded to that report and has amended the bill accordingly. I want to place on record my thanks to the government for that response and also to the other members of the Senate committee for their deliberations.

The report raised two areas of particular concern. These were the terms in the bill regarding the abrogation of privilege and the issue of bail. With respect to the first issue of pretrial disclosure, the words used in the initial bill were ‘the basis of taking issue’. These would have required the accused to provide further and better particulars rather than to simply say, ‘No, we don’t support the views of the prosecution.’ They would have had to provide further and better particulars regarding the details of their defence. Clearly that is contrary to the common law; it is contrary to the principles that have been espoused in our courts over decades. In relation to the presumption of innocence and the presumption of bail, even with respect to cartels, the government initially wanted to reverse the onus of proof, notwithstanding that these are very serious matters regarding criminal cartels under the Trade Practices Act. Nevertheless, the principle of innocent until proven guilty is very important. It is an age old one that we hold dear here in Australia. In short, the report’s recommendations have been adopted in substance, and for that we thank the government.

The other aspect of this bill concerns the Federal Court and the government’s plans to effectively abolish the position of the Federal Court registrar in Tasmania. This is a very serious matter. It has been brought up many times in this place. Indeed, it was brought up during budget estimates over a period of many months. As I indicated last week in the Senate, I personally raised this matter with the Attorney-General on his visit to Tasmania last month and I also wrote to him on 10 August 2009. Just last week I received a response—and that response was very disappointing. It confirmed on record the government’s wish to proceed with their plans. The government indicated that they had received advice from the Chief Judge of the Federal Court and that they were acting on that advice. They sent a copy of that letter to Luke Rheinberger and Martyn Hagan of the Law Society, to Senator George Brandis and to the Tasmanian Liberal senators—Senator Eric Abetz, Senator Richard Colbeck, Senator Parry and Senator Bushby—and expressed their views. They also outlined some of the other benefits or initiatives that have been undertaken in Tasmania. Frankly, that is still not good enough. There is strong support for the second reading amendment moved by Senator Abetz, which states:

(a) at least one Federal Court Registry in each state is staffed on a full-time basis; and

(b) the complement of staff in each such Registry includes a full-time Registrar.

This is consistent with the amendment foreshadowed by Senator Bob Brown, and I strongly support it.

I flag that a bill is coming our way in the not too distant future, and that is the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009. Our committee is deliberating on that bill; in fact, we are due to report on it tomorrow. Our views will be set out in that report when it is delivered tomorrow. If the government does not respond to the bill and does not do the right thing when it is introduced into this place—that is, if it does not treat Tasmania in the same way that it treats every other state and if it does not ensure the longevity of the Federal Court Registry in our state—then, as I have said previously, watch this space. We are putting the government on notice that they should fix this.

I also want to flag the correspondence and communications that I have had with the Law Society of Tasmania. I thank them. They are totally committed to the future of the Federal Court Registry in Tasmania and to it being fully serviced with a district registrar. In their correspondence to me, they say that they strongly oppose the government’s plans because they will have a significant and deleterious impact on the operations of the Federal Court in Tasmania. They also say that the review that the court has undertaken recommends the abolition of the district registrar in Tasmania and its replacement with services offered from Victoria. That is not good enough. It is not good enough for Tasmania to have its services provided from Victoria. As much as we love our Victorian cousins, that is not good enough. They say that it is wholly unacceptable and place on record their strong objections.

Tasmania is a state of the Federation and, without the presence of a legally qualified registrar in the Tasmanian Registry, the Federal Court will be paying no more than lip service to the Tasmanian community. In fact, they refer to section 34 of the Federal Court of Australia Act 1976. I draw this to the government’s and, in particular, the Attorney-General’s attention. Section 34 requires the establishment of a registry in each state. Also, section 18N requires that there be a district registrar for each district registry. Whether there is a breach of the law here, I do not know, but we will investigate that. I note that they have made a submission to the access to justice inquiry, which is a Senate Legal and Constitutional Affairs References Committee inquiry. We will have a good look at that. I look forward to a very serious consideration of their submission and its merits. The government have talked about the annual of savings of $200,000. That is what they say, but according to the Law Society the review was superficial and deeply flawed.

They say they have consulted widely. Frankly, with respect to the consultations we have had, there are so many people in Tasmania who are opposed to the government’s plans that there are too many to list today. In fact, I note that the retiring federal member for Denison, Duncan Kerr, opposes the government’s position with respect to their plans for the Federal Court in Tasmania. On behalf of the Tasmanian Liberal Senate team and the coalition, I say we will be supporting the second reading amendment moved by Senator Abetz. We associate ourselves with the views of Senator Bob Brown, noting that we want to sort this matter out and get a result. I hope that we can. I hope the government listen. We have given them plenty of opportunities, but watch this space—we will not give up. We will ensure that Tasmanians are not treated like second-class citizens. I thank the Senate.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I concur with the sentiments of the speeches we have just heard. I will come to those in a moment. The Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 provides the Federal Court with jurisdiction to hear indictable criminal offences relating to serious cartel conduct. It sets up a procedural framework to allow the Federal Court to exercise new powers granted by the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008. The bill creates two criminal offences, which relate to price-fixing and restricting outputs in the production and supply chain, allocating customers, suppliers or territories and bid-rigging by parties which would otherwise be in competition with each other as well. The bill does not remove the current jurisdiction from state or territory courts and it is in addition to the powers of these existing jurisdictions. So the Greens will be supporting this legislation.

On another matter I disagree with my Tasmanian colleagues from the coalition. It needs to be said first that I am very disappointed that the government has decided not to take the opportunity to amend this legislation to ensure that the Federal Court registrar remains with the Federal Court registry in Hobart. The intention of the court is to remove the registrar, effectively to Melbourne. That will leave Tasmania as the only state in the Federation which does not have a registrar. The position is extremely important. It is as important to Federal Court matters in Hobart as it is to Federal Court matters in Adelaide, Perth, Sydney or wherever else. It is not acceptable to me or to any of my colleagues, at least in the coalition—apparently it is acceptable to Labor colleagues in this place—that the registrar should be being removed from Hobart. This brings me to the amendment which I will put before the committee. That amendment would add a clause saying that:

The Governor-General—

effectively the government—

shall cause at least one Registry in each State to be staffed on a full-time basis, and for the complement of staff in each such Registry to include a full-time Registrar—

to make it clear that no state—and in this case it is Tasmania which is being singularly picked out—will be deprived of its registrar. The amendment, as I have brought it forward, ought to have had the support of the opposition, in view of the fact that the government will not support the Hobart registrar, and I will tell you why. The opposition amendment, which Senator Abetz moved, on the face of it purports to do the same thing. We heard Senator Abetz read out his amendment when he moved it. I will go again:

At the end of the motion, add:

but the Senate calls on the Government to ensure that:

(a) at least one Federal Court Registry in each state is staffed on a full-time basis; and

(b) the complement of staff in each such Registry includes a full-time Registrar.

It is very similar to my amendment, but with one difference: it ‘calls on’ the government to do that whereas my amendment ‘requires’ the government to do it. And we know that the government is not going to do that. So that second reading amendment will become ineffective, vacuous, an exercise in failure. The good senators who have just spoken have indicated that the government has said that it will not accept such an amendment. I ask you: what is the role of the Senate if we are going to be suborned by the government in that way? We might as well all go home. I do not accept it for a moment.

Senator Abetz earlier indicated coalition support for my proposed amendment but said that it would mean that the bill would be delayed. In other words, the amendment would go back to the House of Representatives, where the government would have to consider it. That is the normal course of events in this parliament. But to say that it would be delayed—really? The bill we are dealing with was introduced to the House on 3 December last year. So we are 10 months down the line. In fact, it did come into this place in February and, as we have just heard, a committee looked at it. It has been in this parliament for 10 months and the government has said to the Liberal Party members opposite, ‘If you support that Greens amendment, there will be a delay to the bill.’ The Liberal Party have said, ‘Well, we won’t then.’ I mean, really, what is going on here? I find the position now taken by the coalition totally unsatisfactory.

The Senate has the right to amend legislation. That is the constitutional power we have. The Senate was set up to represent the interests of the states. We all know that those interests have been subjugated to the interests of parties as this parliament has evolved in the last century or more. But here is an issue which is very germane to my home state of Tasmania, from where not just two—and Senator Milne will be supporting this amendment, so there will be two—but 10 other senators come. On this occasion, I would have thought they would be supporting the state and ensuring it is not treated differently from the other states when it comes to this important matter of having a registrar at the Federal Court.

Senator Abetz, though, says, ‘It may delay the bill.’ He says this after 10 months! Really, that is unacceptable. Senator Abetz and his fellow senators on the other side understand that a second reading here—and I will support that, no trouble—has no effect. The good senator says, ‘I’ll wait till the next bill, and, if Senator Brown moves it, we’ll support that one.’ I will move this amendment to the next bill that comes up; he named the bill. But, in 10 months time, after the next election and after the registrar has gone, you know what the government is going to say: ‘This will delay the bill. We cannot have that.’ We are going to have our coalition colleagues saying: ‘We’ll wait till the next bill.’ I cannot believe the naivety of the position taken by Senator Barnett and Senator Abetz. It is better than the position taken by the Labor senators from Tasmania, who have completely collapsed and are not even present for this debate, but it is a position of considered failure and obsequiousness to a process that, obviously, Senator Abetz did not understand.

After 10 months, this bill can withstand an amendment, and the amendment that I will put in the committee stage ought to be supported. I ask my colleagues in the coalition to reconsider this position. I predict that the bill that Senator Barnett was speaking about—which is going to be reported upon tomorrow and which will only come into this house on a timetable set by a government that has taken 10 months to get this bill here—is very unlikely to see the light of day this year as far as Senate debate is concerned. I ask the coalition to very seriously reconsider their withdrawal of support for the Greens amendment. If they do not, the pattern is one of destiny to failure and the loss of the registrar from the Hobart office.

I will introduce this amendment again, but the circumstances will not be different; they will be the same. We ought to be dealing with this now, while this legislation is before us and while we can take action. I predict that the government is not going to hold up this bill over the retention of the registrar in Hobart. The government would accept this amendment. It would be very injudicious of it not to accept it. I cannot understand why the coalition has gone to water on this, and I ask the coalition to reconsider. We will support the second reading and we will support Senator Abetz’s non-directive second reading amendment, but I ask the coalition to reconsider its withdrawal of support for the Greens amendment in committee, because that is directive and will require the government to retain the registrar.

Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary for Social Inclusion and the Voluntary Sector) Share this | Link to this | Hansard source

I thank the contributors to this debate. The Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 is a very important piece of legislation. I think it is very important to me to explain what this bill is all about for those listening to the debate. The bill sets up the procedural framework to ensure that the Federal Court can exercise the criminal cartel jurisdiction that will be given to it under the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2008. These two pieces of legislation are a measure of the government’s commitment to dealing with serious cartel conduct. Not only is the government enacting new criminal offences with heavy penalties; we are giving the Federal Court, which has the specialist expertise in dealing with cartel conduct, jurisdiction to deal with those offences. The government are also giving that court the powers and procedures it will need to exercise the new jurisdiction.

The bill contains a comprehensive and balanced set of provisions that will give the Federal Court the full range of powers needed to run a criminal trial, from the pre-trial proceedings right through to bail, empanelling juries, conducting trials and hearing appeals. The bill is the product of extensive consultation with key stakeholders. The procedural provisions are based on the best features of existing state and territory law and will allow the Federal Court to apply consistent criminal trial procedures, regardless of where the trial is held. The Senate Standing Committee on Legal and Constitutional Affairs described the bill as ‘essentially well drafted and sound’ but was able to identify some areas where there was room for further improvement. The government took those comments into account and has endeavoured to meet the concerns raised by the committee. On behalf of the government, I thank the committee for its report. In due course, I will be moving government amendments to give effect to the committee’s recommendations. The recommendations of the committee have all been accepted, except where the recommendation would undermine the intended operation of a provision in the bill or reduce, rather than increase, the rights given to an accused person.

I will respond now to the issues raised by some of the speakers. The government is not supporting Senator Abetz’s amendment for the simple reason that it is completely unrelated to the substance of the bill, which is to confer criminal jurisdiction on the Federal Court for cartel offences. Further, an amendment that directs the courts as to how they should manage their resources is completely inappropriate. It is a long-held principle, accepted by both sides of politics, that federal courts are self administering and that it is their responsibility to determine how to apportion their total appropriation; the parliament should not seek to second-guess the way the court chooses to expend its resources.

There is already a legislative requirement that the court have a registry in every state and territory to ensure that court services are provided to the Australian people. As a result of this requirement, it is not the case that the Tasmanian registry will close. While registrar services will be provided from other Federal Court registries, three staff will continue in the Tasmanian registry in a customer service role. In fact, the court advised that as of 11 September there were only nine active cases before judges and six cases before the registrar in the Federal Court’s jurisdiction in Tasmania.

The government understands that this is an issue of great importance for the Tasmanian legal profession and for the people of Tasmania, and I respect the fact that the Tasmanian senators have come here and argued the case today. But, particularly as the removal of the district registrar would mean that Tasmania does become the only state in the Commonwealth without a Federal Court registrar, the government is keen for the courts to continue to explore more efficient ways of providing legal services to the Australian people while maintaining the quality of services. The court has provided assurances that it will ensure that the court continues to maintain an excellent level of service in Tasmania. The Attorney-General has been advised by the Chief Justice, the Hon. Michael Black AC, that there is no backlog of cases in the court in Tasmania and that the time taken to finalise applications in Tasmania is actually better than the national average. Nevertheless the government is committed to ensuring that the people of Tasmania have access to high-quality legal services. In October the Attorney-General announced the appointment of the Federal Magistrate to the Tasmanian registry of the Federal Magistrates Court.

The challenge that we have before us though is that providing better access to justice is not simply about providing more resources to courts but ensuring that disputes can be resolved quickly and efficiently, preferably before they even reach court. So, in 2009-10 more than $1 million has been allocated to community legal centres in Tasmania under the Commonwealth Community Legal Services Program and in May 2009 the Attorney-General also allocated additional one-off funding or more than $170,000 to help community legal centres in Tasmania to enhance their services. This was in addition to more than $370,000 in additional one-off funds that the Attorney-General approved in April 2008 to assist community legal centres in Tasmania to better serve their clients. Also, under the Family Relationship Services Program the Attorney-General’s Department is providing around $5.8 million of funding annually to community based organisations in Tasmania to provide a range of family relationship services. These include the family relationship centres, childrens contact services, post-separation cooperative parenting services, family dispute resolution services, including regional family dispute resolution, the Parenting Orders Program and the Supporting Children after Separation Program. Again, the Attorney-General sought proposals from community legal centres across the country, including Tasmania, to trial partnerships with family relationship centres in order to better support people dealing with relationship breakdown. Family relationship centres are located in Hobart and Launceston so there is potential for more than $100,000 to be made available to support the partnership trial in Tasmania. The minister will be making a decision on the successful pilot proposal shortly.

I assure the Senate that the Rudd government is committed to ensuring that all Australians have proper access to justice and the Attorney-General will continue to closely monitor the services provided in Tasmania. If it is the case in six months time that there are service problems in Tasmania in relation to the registry, the Attorney-General has said that he will review this matter again. I commend the bill to the Senate.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the second reading amendment moved by Senator Abetz be agreed to.

Question agreed to.

Bill read a second time.