Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Mental Health) Share this | Link to this | Hansard source

I rise to speak in favour of the Civil Law and Justice (Omnibus Amendments) Bill 2015. As the title would indicate, this is an omnibus bill containing a large number of largely minor, technical changes to a range of Commonwealth acts within the Attorney-General's portfolio. It deals primarily with the federal courts, the newly amalgamated Administrative Appeals Tribunal, bankruptcy and international arbitration legislation.

The measures in this bill are uncontroversial. The bill clarifies provisions which are presently capable of ambiguity. It updates or repeals obsolete provisions in a range of Commonwealth statutes. The bill makes various drafting and stylistic changes, including renumbering of provisions to enhance the readability of the Commonwealth statute book. The bill also makes small changes to the procedures which apply in the rare instances in which criminal proceedings are brought in the Federal Court and to the way in which juries are managed by that court. It also makes small amendments to the procedures which apply in bankruptcies and in international arbitrations. Labor is happy to support this bill. I commend the bill to the Senate.

Nick McKim (Tasmania, Australian Greens) Share this | Link to 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.

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

The purpose of the Civil Law and Justice (Omnibus Amendments) Bill 2015 is to make minor technical amendments to civil justice legislation in order to improve its operation and clarity. The bill is essentially uncontroversial. I thank Senator McLucas for her contribution. I thank and acknowledge Senator McKim for his contribution as well. Senator McKim, what you have to say about access to justice is something that resonates very strongly with me and with the government. If only the resources were available in the budget; I wish they were.

The bill further supports the amalgamation of four key Commonwealth merits review tribunals by amending the Administrative Appeals Tribunal Act to assist the operation of the Administrative Appeals Tribunal. The amendments to the Bankruptcy Act will reduce red tape, streamline certain review applications and clarify confidentiality requirements. Amendments to the Evidence Act will provide conformity with national uniform legislation. Amendments to the Federal Circuit Court of Australia Act, on which Senator McKim touched, will clarify the powers that an authorised arrestor may use to execute an arrest warrant.

Amendments to the Federal Court of Australia Act will streamline the jury empanelment process, enhance the pre-trial process for indictable offences and improve the accuracy of the act. Amendments to the International Arbitration Act will simplify provisions for the enforcement of foreign arbitral awards, improve compliance with the New Convention on the Recognition and Enforcement of Foreign Arbitral Awards and apply confidentiality provisions to arbitral proceedings on an opt-out rather than an opt-in basis.

In conclusion, the bill will—as I said—make minor and technical amendments which will improve the efficiency and operation of the civil justice system and provide individuals with greater access to justice. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.