Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved in this bill. I am advised that the memorandum was circulated in the chamber today. I seek leave to move government amendments (1) to (5) on sheet BX225 together.

Leave granted.

I move:

(1)    Clause 2, page 2 (at the end of the table), add:

(2)    Schedule 2, item 13, page 10 (lines 27 and 28), omit paragraph (1AA)(c).

(3)    Schedule 2, item 32, page 14 (lines 8 and 9), omit paragraph (4A)(c).

(4)    Schedule 2, item 32, page 14 (lines 20 and 21), omit paragraph (4B)(d).

(5)    Page 22 (after line 23), at the end of the Bill, add:

Federal Court of Australia Act 1976

1  Subsection 6(7) (at the end of the definition of prescribed court)

Add:

      ; or (d)    the Supreme Court of a State.

I will just outline briefly some of the issues in these amendments. As I indicated in the second reading debate, the government proposes some amendments to the bill, in particular to schedule 2. Schedule 2 contains amendments which provide for more streamlined appeal pathways to reduce confusion for litigants and aid the Federal Court of Australia in the efficient management of its resources. Amendments are also proposed to insert a new schedule 4 into the bill. Schedule 4 clarifies that a judge of the Federal Court of Australia, other than the Chief Justice, may hold a concurrent appointment as a judge of one or more state supreme courts.

The specific amendments moved on sheet BX225 implement a recommendation from the Senate Standing Committee on Legal and Constitutional Affairs. Recommendation 2 of the Senate report recommended that proposed paragraph 24(1AA)(c) be deleted from schedule 2 of the bill so that interlocutory decisions relating to security for the payment of costs by a single Federal Court judge can continue to be appealed to the full Federal Court. In submissions to the committee, the Law Council of Australia and the Australian Network of EDOs, environmental defenders offices, strongly supported retaining the right to appeal for security of costs decisions. This is based on the view that removal of this right of appeal could effectively stifle the litigation as parties would be taking a large financial risk irrespective of the merits of the case. The government accepts the view of the Senate standing committee report that removing the right to appeal interlocutory decisions relating to security for the payment of costs by a single Federal Court judge could have the unintended consequence of limiting access to justice for litigants. I note that the requirement to seek leave to appeal these decisions under section 24(1)(a) of the Federal Court of Australia Act enables the Federal Court to manage any potential delays caused by appeals against such interlocutory decisions relating to security for the payment of costs by a single Federal Court judge.

In relation to amendments (3) and (4), although not specifically referred to by the Senate committee or the Law Council of Australia the government proposes that, for consistency reasons, similar paragraphs 33(4A)(c) and 33(4B)(d) also be deleted. These paragraphs provide for no avenue of appeal for decisions relating to security of costs to the High Court when made by the full court exercising original jurisdiction and a single judge or full court in the appellate jurisdiction respectively. The deletion of these paragraphs will continue current arrangements and ensure that security for costs orders will continue to be appellable.

In relation to amendment (5), this amendment clarifies that a judge of the Federal Court of Australia, other than the Chief Justice, may hold a concurrent appointment as a judge of one or more state supreme courts. I suggest to the Senate that this is neither a controversial nor a complex amendment. It will involve amendment to section 6 of the Federal Court of Australia Act to include the supreme court of a state within the definition of a prescribed court.

In March 2008, the Standing Committee of Attorneys-General first agreed to the development of an exchange program between judicial officers of interested jurisdictions. The Federal Court Act does not currently preclude appointment of Federal Court judges to state courts. The amendment will encourage existing arrangements for the temporary transfers of Federal Court judges to state supreme courts. The government’s expectation is that the transfer of Federal Court judges to hear matters in superior state courts will enhance the knowledge and experience of Federal Court judges, benefit other jurisdictions with new ideas and improvements to their courts and result in a more consistent body of national decision-making in areas of common jurisdiction. As I said, this demonstrates the government’s commitment to working with the states and territories in pursuing court excellence on a national basis. I commend the amendments to the Senate.

Question agreed to.

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

I have just been having a little chat with Senator Abetz about this amendment. I want to draw Senator Wong’s attention to the fact that I am, at the moment, staying with the wording revision on sheet 5937 and I move:

(1)    Page 22 (after line 23), at the end of the bill, add:

Federal Court of Australia Act 1976

1  At the end of section 34

Add:

        (3)    The Registrar shall cause at least one Registry in each State to be staffed on a full-time basis with the complement of staff in each such Registry to include a full-time Registrar.

The argument here has always been that there should be a registrar, understood to be a full-time registrar, in each state and that includes one in Hobart. To refresh the minds of senators, the problem for Tasmanian senators has been that the court has moved to eliminate the job of registrar in Hobart. We do not accept that and want that job maintained.

The government, I am given to believe and I know Senator Wong will speak on this, was happy for the registrar position to be maintained but not if the word ‘full-time’ was in front of it. I will allow her to put the government’s position on that. The opposition wants that terminology maintained and I can see why, because the Greens have also been committed to keeping the registrar’s position in Hobart on the same basis as the position is maintained in all the other state capitals.

I think Senator Abetz, a while ago, was referring to the extra duties that the registrar in the past has performed with the Australian Administrative Appeals Tribunal to complement the work that is done in Hobart. I will not go right through the argument we have had in this place before, about maintaining that position in Hobart, suffice to say it is an important part of the functioning of the Federal Court for Tasmanians just the same as it is for Queenslanders, Western Australians or the people of New South Wales.

The decision by the court to abolish the position was strange given that clause 18N of the court legislation says that the district registry must have a district registrar. The way of getting around that was to say: ‘The registrar for Hobart will be the one who is in Melbourne.’ We do not accept that. As far as we are concerned, ought to be a registrar in Hobart. The legal establishment in Tasmania is very keen to see that the registrar’s position is maintained. Senator Abetz, as he said, has raised this a number of times in committees. Frankly, the reasoning for abolishing the registrar’s position in Hobart simply has not been validated and the Federal Court should maintain that position. So the amendment is as circulated on sheet 5937 revised 2.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Obviously Senator Brown is entitled to move the amendment if he wishes. It is disappointing, because the government had understood that as a result of negotiations with the Attorney-General’s office—and I have some emails that have been forwarded to me from your staff, Senator Brown—a wording that the government could support had been agreed with the Australian Greens. We would have been able to support such an amendment. I will quote from what was sent to us:

The registrar shall cause at least one registry in each state to be staffed on a full-time basis, with a complement of staff in each registry to include a registrar.

It is very unusual for Senator Brown to do something that Senator Abetz wants, but clearly on this occasion it seems that there has been a meeting of minds whereby the Greens are now supporting the position that the opposition are putting, as opposed to what we understood had been negotiated with the government. That may not be your understanding, Senator Brown, but that was my advice.

This is an issue about the effective use of resources. The government, in good faith, sought to negotiate with the crossbenchers to enable a provision in the bill that talks about staffing on a full-time basis but recognising that whether or not the registrar needs to be full time should properly be a decision of the court and should take into account the efficient use of resources. I will not traverse the issues any further, unless the Senate desires it. The government is not in a position to support the amendment as moved. We were in a position to support the amendment that we had previously understood would be moved.

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

Senator Wong is quite right: we had agreed to the change in terminology. But the opposition does not agree, and that is consistent with the position that it should be spelt out that the position is full time. Let me cut to the chase here. If the opposition does not support the amendment, it will not succeed in this place. The government and Greens cannot make it happen and I want to see that this does happen, so this is simply reiterating the position we have carried all the way through.

If the amendment succeeds—and I see that it will—I would then expect to have some talks with the minister and the minister’s representatives, because this is not the biggest ticket item that this Senate has dealt with in history. This is a very, very small amount of money. In fact, we are talking about an impost on the people of Tasmania if the government does not ensure that this position is funded, and it can do that without interfering in the workings of the court. So I am sure that a bit of negotiation can come to a common-sense outcome here, but I am not prepared to see the amendment lost in this place, which would therefore mean we would not have an outcome until sometime next year at the earliest.

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

Can I briefly indicate that an amendment circulated in my name on sheet 5974 is not an amendment that I intend to pursue. It is in virtually identical terms to that moved by the Leader of the Australian Greens and, as was indicated earlier, I support the wording in his amendment. As for the wording in his amendment, I am not sure where it had its genesis, but I do know that I was provided with a copy of an amendment yesterday in which I understand—and this is the way it ought to work, I would suggest to the minister—the Attorney’s office suggested a form of words which did not have the word ‘full-time’ in front of the word ‘registrar’. Of course, when I saw it I invited my colleague to request that the word ‘full-time’ be inserted in front of ‘registrar’.

Why did I seek to do that? The reason is that you can have a full-time registry by having a receptionist answering the phone from nine till five. That is a full-time registry. But of course most people go to a registry not for the purpose of talking to a receptionist but to get the benefit of the registrar. So I saw it originally as some very neat framing out of the Attorney-General’s office which neatly sidestepped the actual issue, which is the need for a full-time registrar. That is why I then requested that the word ‘full-time’ be inserted in front of the word ‘registrar’—so that the registry in each state is to be staffed on a full-time basis with the complement of staff in each such registry to include a full-time registrar.

For whatever reason—and I do not understand it, quite frankly—the government seems to have locked in behind the administration of the Federal Court in relation to this matter. Having done so, it is clear to me at least that there would be a very strong temptation for the next Senate estimates to bounce back to me that we had amended the legislation without the requirement for a full-time registrar, just for a full-time registry. Of course, you can achieve that by simply having a full-time receptionist rather than the actual service that you want there, which is that of a registrar. That is why the wording needs to include that addition of which the minister complained.

As for the minister’s understanding, I would have been, quite frankly, gobsmacked if in all the times this has been raised in this place, in the media and in Senate estimates by both me and Senator Brown the message had not got through that the issue was a full-time registrar. I am sure that message had got through, so the concept of putting ‘full-time registrar’ into the amendment should not have come as a surprise. That makes it absolutely watertight and absolutely clear what the intention of the opposition and the Greens is in relation to this matter. So can I indicate the coalition’s support and co-sponsorship of this issue with Senator Brown.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.