Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

This bill, introduced last year and referred to the Senate Legal and Constitutional Affairs Legislation Committee, implements the merger of certain back office corporate services functions of our three federal courts: the Federal Court, the Family Court and the Federal Circuit Court. The merger of these functions—including finance, human resources, information technology and property administration—will save $9.4 million over the six financial years to 2020-21. It is expected to save a further $5.4 million annually in the years beyond. The bill will not alter the independence of the three courts, each of which will remain distinct bodies under their respective establishing acts. The courts will continue to be governed by their respective heads of jurisdiction.

Labor supports this measure. Where possible, we support removing duplication of back office functions so that funding can be best directed towards dealing with the core business of the courts and with meeting the needs of Australians who find themselves before those courts. While Labor supports this bill, no-one should be under any illusion that the relatively modest savings it will achieve will on their own solve the resourcing problems increasingly suffered by the federal courts, as we heard recently in Senate estimates.

Clearly, there are significant problems which demand the Attorney-General's attention and his action. Heads of jurisdiction have warned us of the consequences of the government failing to properly resource their courts. The situation is most dire in the Federal Circuit Court, a situation the government has inexplicably decided to make even worse by failing to appoint judges to vacancies in a timely fashion. Equally, fortunately, we can note some appointments occurred within the last fortnight to address some of those building pressures.

Of course, the management of tight court resources is also made much harder by the multiple rounds of cuts the government has now imposed across the legal assistance sector. Legal assistance services are not a luxury, as the Productivity Commission pointed out. They are integral to the smooth functioning of our courts. The timely provision of proper legal services can often avoid a matter going to court in the first place and, if it must, legal assistance will ensure that the matter proceeds as smoothly as possible, not clogging up the courts unnecessarily. This is a case where austerity can create more problems than it solves.

The government must act to ensure the courts are put on a stable financial footing into the future. The Attorney-General must release the KPMG report he commissioned into the funding of the federal courts in 2014 and explain to the courts, the profession and the Australian community how he intends to make sure that our courts are properly resourced into the future; but I commend this bill to the Senate.

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

As we have heard, this bill seeks to merge the corporate services functions of the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia, and this would result in a single administrative entity for those above mentioned courts. This entity would also include the National Native Title Tribunal, which currently sits within the Federal Court entity.

We understand that the corporate services to be shared will include communications, finance, human resources, information technology, libraries, procurement, contract management, property, risk oversight and statistics. We also understand that the shared corporate services would be managed by the Chief Executive Officer and Principal Registrar of the Federal Court. Importantly, the statutory independence of the three courts would be preserved and the existing Chief Justices and Chief Judge would maintain responsibility for the business of their respective courts. There have been a number of reviews conducted into this area over the past few years: there was one in 2012, the Skehill strategic review, a KPMG review in 2014, and a 2015 Ernest and Young review. In broad terms, they all identified potential savings and efficiencies in sharing administrative arrangements of our country's courts.

We understand that the merger, based on government advice, is expected to deliver efficiencies to the courts of $9.4 million to 2021 and ongoing annual efficiencies of $5.4 million post 2021. We are very pleased to hear the Attorney-General make it very clear that it is the government's intent that all savings would be reinvested into the court system. Having said that, it needs to be placed on the record that even with the reinvestment of these administrative savings back into the court system the simple fact is that we will still be left with a chronically underfunded federal court system, particularly in the family division. The 2013-14 annual reports of the Federal Court, the Family Court and the Federal Circuit Court, show the combined deficits of the courts over the forward estimates is estimated to be $44.2 million. It has been reported that courts could be facing a blow-out in expenses of up to $75 million by 2017-18.

It is, of course, alarming that the government's response, in part, to what can accurately be labelled as a 'funding crisis' in Australia's court system is to try to reintroduce what in effect is a divorce tax, by significantly increasing certain fees in the Family Court. It is worth noting that the measure has already been disallowed twice in the Senate. As far as the Greens are concerned, this is something that we certainly will once again move to disallow, should the government again attempt to make it more expensive for people to file for divorce.

Extracting money from families who are already under a significant emotional load and are already suffering emotionally and potentially financially already, is not the solution to sustainable funding for the courts. As we often hear in the justice area, justice delayed is in too many cases justice denied. We owe it to the Australian people to have a court system that progresses matters in a way that allows people to have resolution within a reasonable time frame and allows people access to justice, because access to justice in this country has become more and more difficult as the years have gone by. While it was pleasing to hear at estimates recently that there is now a full complement of judges, there have been significant delays in appointing judges to the Federal Circuit Court and the Family Court, which again resulted in what are quite simply unacceptable waiting times in many of those courts.

It is worth the Senate reflecting on the submission of the Law Council of Australia to the inquiry of the Senate Legal and Constitutional Affairs Committee into this bill. The Law Council wrote:

Judicial vacancies result in unacceptable delays in the listing of matters. The earliest first return date for some matters filed in the Sydney Registry of the Family Court as at December 2015, was May 2016, with delays exceeding three years for some matters to reach trial.

It is also worth reflecting on the reports of a comment made by a recently retired Federal Circuit Court judge, Giles Coakes, who earlier this year was reported as saying, 'It's inexcusable in my view that the government has not met its responsibility to make timely appointments.' It is worth reflecting that—as the previous speaker, Senator Collins, said—some appointments have been made in recent times, which is an accurate comment. It is also worth reflecting on the evidence given to the Senate estimates committee just a couple of weeks ago by the Attorney-General, Senator Brandis, on the difficulties around pension arrangements for judges in certain federal courts and legislated ceilings on the numbers of judges in certain federal courts. It is the view of the Greens that if there are legislative actions, or a legislative action, that can be taken to resolve those two matters—if the difficulty around pension arrangements, which the Attorney General suggested was responsible for the high number of judges who are currently on sick leave, needs changing and dealing with in legislation—then the Attorney should be working on legislation to bring forward to this parliament to fix that issue, and again with the other matter I just mentioned.

The second reading speech on this legislation says:

The Bill will place control of corporate services in the hands of the Federal Court CEO. The Federal Court CEO will also hold the roles of accountable authority under the finance law and agency head under the Public Service Act.

This does not mean that the Federal Court will be 'taking over' the running of the Family Court and Federal Circuit Court. Each court will remain independent in their core functions and will not be subject to the control of another court.

I ask on the record here, and I would be interested in the minister's response, if those comments are intended to cover the concerns raised by the current chief executive officer of the Family Court of Australia, in his submission to the committee inquiry, regarding the Family Court's and the Federal Circuit Court's control over its information technology. The CEO in his submission does not believe that the bill provides enough control for the Family Court and Federal Circuit Courts over their provisions around information technology. He further submitted that there is the possibility that a conflict of interest could arise in giving the chief executive officer of one court the power to make decisions that affect all three courts.

I would be interested in a response from the minister to those matters and also, if possible, an assurance that the considerable expertise of the staff in the various registries will not be impacted on by this merger—that is, whether any commitments can be given to the Senate today around the potential for job losses and the consequent loss of what is a considerable body of corporate knowledge that is held by staff in the various registries of the courts that are affected by this legislation.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I, too, support the bill. I want to make a couple of comments as the Chair of the Senate Legal and Constitutional Affairs Legislation Committee, which conducted the inquiry into this. I am pleased to see that the deputy chair of the committee and another committee member, Senator Collins and Senator McKim, have already made comments about this bill before the parliament indicating cross-party support.

The bill would merge the corporate service functions of the Federal Court with those of the Family Court and the Federal Circuit Court and bring the courts together as a single administrative entity. The performance, funding and operation of the Federal Court has been considered in several recent reports in the context of smaller, more rational government. That is a goal that the committee was pleased to endorse. The merger of the Family Court, Federal Court and Federal Circuit Court into a single administrative entity will make legislative provision for courts to share corporate services. The entity would also include the National Native Title Tribunal, which is currently within the Federal Court entity.

It is estimated that savings of about $9.4 million over six years would result from the merger, resulting in ongoing annual efficiencies of $5.4 million from this time. These are not big amounts of money, but it is always important to bring forward savings where they can be made. As has been mentioned by other speakers, those savings are going to be, we understand, put back into the administrative arrangements of the courts. So it is one way of giving the courts more funding without calling upon the poor old taxpayer to find more money.

I noticed the CPSU in its submission to the committee argued that, rather than focusing on restructuring the courts, the government needed to address chronic funding shortfalls and provide proper levels of resourcing to courts. That is something that every parliament would like to see happen in every aspect of governance in Australia. But, as I often point out when people say, 'The government should pay,' in fact governments do not have any money. They just use taxpayers' money. So it is not the government that funds these things; it is the individual taxpayers throughout Australia who are always being called upon to contribute more so that we can spend more. Whilst the Australian taxpayer is a very generous person, there is a limit to their generosity. Most taxpayers do not like paying more tax for all of the things that people keep asking the government to fund.

The committee issued a unanimous report welcoming the merger of the courts into a single administrative entity. As I say, the savings arising from the efficiencies are to be reinvested back into the courts. This will leave the courts far better placed to deliver services to litigants.

The committee noted the details relating to the corporate services matters and efficient consultation between the three courts are to be set out in an MOU which will provide for appropriate management of corporate services. The committee encouraged the three courts to continue working expeditiously towards an MOU which will meet the needs and circumstances of all.

There have been concerns raised, I am sure, both to all senators in their electorate capacity and the committee and at estimates about the backlog of cases and how this should be best resolved. I do not want to mention names, places or times that might interfere with privacy or perhaps the outcome of some matters before the courts, but I was recently told of an instance where a 91-year-old litigant had to wait something like 18 months after the hearing of a particular matter before a judgement was delivered. I was many, many years a lawyer myself. I understand that sometimes judges take a while to write their judgements. I understand that in many cases the judiciary are running from one particular trial matter for hearing to another and sometimes do not get the time to deliver or write their judgements as expeditiously as would be hoped for. But it does seem to me there is something wrong with the system when, as I say, after the matter for a 91-year-old litigant had been heard by the court—and I understand the trial was categorised as urgent so that it could be heard early—it took some 18 months to deliver the judgement. This just seems to be wrong. As the Attorney said at estimates, I think, it is a matter not for the Attorney or for the government but for the chief judges and administrative processes within the various courts that determine this. That is not a matter for governments—I agree with the Attorney on that—but it does seem to me that there needs to be some more attention given to the timeliness of the delivering of judgements and reasons, particularly where certain classes of litigants are in a situation where a decision is particularly urgent, such as in the case I mentioned.

Getting back to the committee's investigation of this bill, the committee did suggest that to ensure that the new arrangements are working effectively and the sustainability of the courts' workloads and financial situations is improving the government should have a review of the legislation by the Attorney-General's Department one year after its implementation, in consultation with the three courts. Such a review would allow the department to advise the government if any refinement of the bill or the arrangements was required. So whilst the committee was minded to agree with the bill and to recommend that the bill be passed, the committee did indicate that in its view the department should have a serious look at the arrangements in a year's time just to make sure they were working as they should be. I would expect and hope that the department would do that in any case, but to formalise it the committee has mentioned it in the penultimate paragraph of its report.

I support the bill, and I thank the committee for its consideration of the bill. As always, I thank the secretariat staff, who, on this and every other occasion, do a wonderful job in assisting committee members in understanding the submissions and the issues involved and in assisting the committee in reporting its findings. I also thank the submitters who made submissions to the inquiry. There were only four, and I thank all of those for taking the time to make their thoughts known to the committee.

Concetta Fierravanti-Wells (NSW, Liberal Party, Assistant Minister for Multicultural Affairs) Share this | Link to this | Hansard source

I thank honourable senators for their contributions to this debate. This bill is a crucial step towards placing the federal courts on a sustainable funding footing. As has been noted before, there is a pressing need for the savings forecast from the bill, given the significant budgetary pressures and ongoing deficits faced by the Federal Court and Federal Circuit Court. This bill would ensure that more of the courts' finite budgets are targeted at the thing that really matters—their delivery of justice to the Australian community. This is not only sensible, it is a matter of duty to the Australian taxpayer.

The bill's objective should not be conflated with calls to address broader concerns relating to the family law system, nor should such arguments be allowed to denigrate what the bill seeks to achieve. The reform, once fully implemented, is forecast to deliver $5.4 million each year in savings from the amalgamation of the back-office functions. The reform will also create scope for the courts to identify further opportunities for efficiencies into the future, so the final impact could be even greater. Let me reiterate: this is no government grab for savings to be returned to consolidated revenue. All the savings made by the courts are to be retained by the courts for the benefit of the courts. Clearly, funding injections are not sufficient to ensure the courts' long-term financial sustainability. Despite a significant funding injection in the 2012-13 budget, the family courts are now in a grave financial position. Realistic savings and efficiencies must come from within the system. The bill is vital to the courts achieving long-term financial sustainability. However, in a tight fiscal environment there must be a continuing focus on all court administrative practices.

The bill contains numerous measures to safeguard the integrity and independent identity of each of the courts. It addresses the unsatisfactory situation at present where the separate management of the Family Court and the Federal Circuit Court is impeded by their sharing of a single CEO. It guarantees the integrity of the separate budgets of each of the courts by preventing one court's funds being spent on another without appropriate consent. It ensures that relevant delegations will be made from the administrative head of the organisation to support the courts' independent management.

The bill has been developed in close consultation with the courts, and many of the key measures are the result of close consultation with the chief justices and the chief judge. In its submission on this bill the Family Court indicated that it had only one issue it wished to raise. Can I particularly address this in the context of the matter that you raised, Senator McKim. The Family Court submission indicates that its key remaining concern is the unconstrained powers of the Federal Court CEO, particularly in relation to the courts' information technology systems. The Federal Court CEO's ultimate responsibility for the delivery of corporate services is required to ensure that projected savings can be delivered, which will be critical to averting the need for cuts to frontline services. This is particularly necessary in relation to information technology, which is key to the savings to be achieved. The Federal Court CEO will be required to consult the CEOs of the Family Court and the Federal Circuit Court and the heads of jurisdiction in relation to corporate services, including IT. This will ensure that their delivery is tailored to the needs of the courts.

The heads of jurisdiction of the other two federal courts have advised that they do not support the creation of a board to oversee the functions of the Federal Court CEO. Adopting the proposal that the Federal Court CEO's decisions be voidable would create uncertainty in relation to the courts' contracts.

Although corporate services will be run by the Federal Court CEO, I am satisfied that there are sufficient safeguards in place. Consultation requirements have also been built in to ensure that each chief justice, the chief judge and the CEOs are all consulted in relation to the delivery of corporate services. The retention of corporate services functions within the courts' administrative entity and their management by a court CEO will ensure the delivery of these functions is closely aligned with the needs of the courts. This offers a better alternative to the approach taken prior to self-administration, where the Attorney-General's Department provided administrative support to the courts.

In short, the bill will deliver much-needed savings to be reinvested in the courts' front-line services while protecting and upholding their independence. I commend the bill to the Senate.

Bill read a second time.