George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Tonight I want to acquaint the Senate with the latest episode in the chapter of accidents which has been the Rudd-Gillard government's attempt to restructure the federal judiciary and, in particular, the epic incompetence which has characterised its dealings with the Federal Magistrates Court.

As honourable senators would know, the Federal Magistrates Court was established by the Howard government in 1999. Its purpose was to create a federal court of general jurisdiction, to deal with matters which were of such a nature as were not appropriate to be dealt with by the Federal Court or the Family Court—the Commonwealth's two principal trial courts. These were matters of a less complex and more routine character.

Since its establishment, the FMC has proven to be an invaluable part of the judicial arm of government. It swiftly became the Commonwealth's principal trial court and court of summary jurisdiction, dealing with less complex cases in a pragmatic and cost-effective way, while freeing the Federal Court and the Family Court to deal exclusively with larger and more complex matters.

As revealed by the annual report of the FMC, which was tabled in the Senate yesterday, in 2010-11 the FMC dealt with 90,714 federal law matters, including 84,094 family law matters and 6,620 other federal law matters. Eighty-six per cent of family law matters which were filed in 2010-11 were dealt with in the FMC. In every case, were those matters to have been dealt with by the Family Court, the process would have been more complex and consequently have taken longer to complete, and the proceedings would have been more costly to the parties.

Notwithstanding its demonstrable efficiency and economy as the workhorse of the federal judiciary, it is widely known within the legal profession that the Rudd-Gillard government has been no friend of the Federal Magistrates Court. In March 2008 the incoming Attorney-General, Mr McClelland, instructed a consultant, Mr Des Semple, to conduct a review of the operation of the family law system and, in particular, the relationship between the Family Court and the FMC.

The Semple report was published on 20 November 2008. It recommended that the FMC, in effect, be collapsed into the Family Court, while the remaining federal magistrates would become Special Masters of the Federal Court. This radical proposal, which would have eliminated the court as a separate branch of the judiciary, was, bizarrely, justified on the slight ground of saving an estimated $2 million per annum. Legislation was foreshadowed to carry this restructure into effect. Three years later, the legislation has still to be introduced into the parliament, and it has no place on the business list for the remainder of the year. Meanwhile, in anticipation of the passage of legislation which after three years we are yet to see, the government, by executive action, effected a de facto merger of the courts by combining their registry functions and appointing the CEO of the Family Court, Mr Richard Foster, to be the acting CEO of the FMC as well. This arrangement, which was described as temporary, remains in being after all these years.

Then, in 2009, the High Court handed down its decision in Lane v Morrison, which struck down the Australian Military Court as being non-compliant with chapter III of the Constitution. On 10 September 2009, I offered the government a solution to the problem posed by Lane v Morrison, and a way out of the mess of its own creation arising from the uncertain fate of the FMC. In a speech in this chamber, I suggested:

When … the government has to decide with what judicial apparatus to replace the Australian Military Court … the obvious solution would be to have a military division of the Federal Magistrates Court or certain dedicated federal magistrates to deal with military justice matters.

This is but one example of the tremendous utility to the Commonwealth of having a general federal court of summary jurisdiction that can be divisionalised and can deal with all matters, including military justice matters, arising under Commonwealth law.

On 24 May 2010, the government conceded the coalition's view that the FMC should not be dismantled. However, it accepted our position only in part, since the latest iteration of the government's plan for the FMC would still have seen the transfer of its family law jurisdiction—the lion's share of its jurisdiction—to the Family Court. Now, needless to say, this seemingly endless uncertainty about the future of the Federal Magistrates Court—which is no closer to being resolved now than it was when it was first raised in March 2008—has had a devastating effect upon the morale of the court. It is no secret that morale among the members of the court—who, I repeat, now have responsibility for the vast majority of cases commenced in the federal jurisdiction—is at an all-time low.

What has exacerbated the situation further is the fact that federal magistrates, unlike all other federal judicial officers, are excluded from the judicial pension system. As a result, on 17 June this year, some 58 of the 63 federal magistrates commenced legal action against the Commonwealth arguing, in effect, that by denying them access to that system, unlike any other federal judicial officers, the government was in breach of its obligations under chapter III of the Constitution to preserve the independence of the court, financial security being an essential element of that independence. The case, Altobelli v The Commonwealth, was commenced in the High Court and has since been remitted to the Federal Court for trial. It is a bizarre turn of events: in effect, an entire court suing its own government.

Now a remarkable development has occurred. On 11 October, the Australian Government Solicitor wrote to the solicitors for the federal magistrates. The letter, which appraised the magistrates' pleaded case from the Commonwealth's point of view, contained the following extraordinary paragraph, paragraph 11:

In any event, on the applicants' pleaded case, it seems to us that one of three possible outcomes may follow as a result.

(a)   The structure of the Federal Magistrates Court is deficient because it does not expressly provide for a life-long guaranteed pension for Federal Magistrates with the consequence that the Federal Magistrates Act 1999 is invalid.

(b)   If not (a), the Federal Magistrates' appointments are constitutionally infirm (and always have been) because of incompatibility with the requirements of Chapter III. This outcome assumes the Federal Magistrates Act is valid because, properly construed, it provides a mechanism either for the Remuneration Tribunal or the Governor-General to determine that Federal Magistrates be provided with a life-long guaranteed pension.

(c) If not (b), then although Federal Magistrates' appointments are not invalid, they could not (and still could not) validly exercise Commonwealth judicial power unless first provided with a life-long guaranteed judicial pension.

This must be one of the most remarkable letters ever written on behalf of the Commonwealth of Australia. What it asserts—and what it foreshadows the Commonwealth will argue—is that, were the federal magistrates' action to succeed, the necessary legal consequence would be that, for one or more of the three reasons set out, no decision of the Federal Magistrates Court is valid, because either the act which created the court is invalid or the magistrates' appointments were invalid or they could not validly exercise judicial power under chapter III of the Constitution.

I should stress that the federal magistrates do not maintain that any of those consequences would follow were their litigation to be successful. But the Commonwealth, in terrorem, is foreshadowing that it will mount such an argument. Think of it: the Commonwealth of Australia, presumably after due consideration, proposes to argue before the High Court that every decision of its principal trial court is potentially invalid. It is going to argue that every divorce, every custody order, every maintenance order, every order made in the general federal law jurisdiction—including every order made in relation to asylum seekers since 1999—is invalid. It is an astonishing submission. For an Attorney-General or any other official to instruct the Commonwealth's legal advisers to make such a submission and invite such a finding, with the chaotic consequences which it would entail, is extraordinarily reckless. But such seems to be the Labor Party's determination to destroy this court.

What is even more revealing is that the letter was accompanied by a without prejudice offer to settle the litigation on the basis that Commonwealth would not pursue costs against the federal magistrates if they agreed to withdraw their action. The reckless course foreshadowed by the government was as plain a threat as it is possible to imagine.

The Gillard government must end this fiasco now. It must cease its campaign against the Federal Magistrates Court. It must end the uncertainty about the future which has bedevilled the court for more than three years. And, most importantly, the Attorney-General must instruct those who represent the Commonwealth in the Altobelli case not to persist with this extraordinary submission, which, were it to succeed, would cause unprecedented chaos for the Australian judiciary and the Australian community at large.

I seek leave to table two letters from the Australian Government Solicitor to Yeldham Price O'Brien Lusk lawyers dated 11 October 2011.

Leave granted.