Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

I thank the honourable member. It was almost a dorothy dixer because early in the term of this parliament I proposed private member’s legislation that would establish a parliamentary commission to which a matter raised in the parliament could be referred so that it would not be a political consideration. The parliament would receive a report from persons of independent standing and of substance—usually former judges—so that it could address these situations. In that debate I raised not only the instance of where a judge suffers some disability that they themselves do not recognise but also the terrible prospect of an instance where allegations of wrongdoing were made against a judge, those allegations were not accepted, the allegations were contested and the issue then came before the parliament and we had no mechanism that was fair, independent, transparent and known in advance—so that everybody understood the procedure—that would enable such issues to be properly considered so that we would not be making what are essentially political decisions.

In the address that I gave on the introduction of the bill, I drew attention to the circumstance where serious allegations were made against Justice Kirby of the High Court. Fortunately, in that instance the disproof of those allegations emerged quickly. Had they not, the only mechanism available would have been an address in the houses. There would have been a political contest and it would have been a politicised debate about the future of a judge. It would have been an entirely inappropriate way to deal with the matter. With the expansion of the federal judiciary—and because the magistrates are appointed under the Constitution, as are the Federal Court judges and the High Court judges—it is inevitable that at some stage we will be confronted with an issue where the propriety of the conduct of a federal judicial office holder emerges and we have nothing other than an ad hoc method of dealing with these matters. We have no arrangement that we have agreed amongst ourselves or that would be known to the judges that would address natural justice, permit them to put their case and give proper consideration to the whole range of matters that would be material. That seems to me to be a great deficiency, given the expansion of the federal judiciary.

Essentially, for the first 60 years of our Federation the only federal justices were High Court justices. It was most improbable that such an instance would arise. If it did, I suppose it was thought that the parliament would give time and appropriate consideration to those matters. But now we have a federal judiciary which comprises the High Court of Australia, the Federal Court of Australia, the federal Family Court and the Federal Magistrates Court. Allegations against a number of persons regarding competence and continuing competence may emerge—hopefully they will not but inevitably, given the nature of things, they may—or indeed allegations of impropriety may be made. We need to anticipate this and put in place mechanisms that will be fair, transparent and understood well in advance so that any person against whom such allegations are made can be confident that there is an independent process and that the parliament will not be dealing with these matters in an ad hoc way in a partisan environment, because that is just what will destroy the sense of integrity of the independence of the judiciary. Those remarks are rather oblique to the bill, and I did not intend to speak to those matters but for the fact that the member for Fisher raised those matters. I thank him for doing so and I thank him for his question.

As to this particular legislation, when the Federal Magistrates Court was established, it was intended to be a lower cost jurisdiction and a lower cost court than the other federal courts, but I think insufficient thought was given to the circumstances of federal magistrates, who were denied judicial pensions under the arrangements which were put in place. This bill addresses that fact because it recognises that some people will have to retire because of ill-health and some will die in circumstances where proper provision is not made for their dependants. Just as judges who take positions and appointments in other federal courts often forsake quite remunerative practices at the bar, so too do persons who take office as federal judicial officers in the magistracy usually come from a profession where, had they continued in their practice, they would have put aside proper arrangements for their possible disability or death. Going to the Federal Magistrates Court should not be an impediment that is put in their way.

Labor is particularly concerned about two points. The first point concerns the discriminatory arrangements which deny same-sex partners of federal magistrates the same death benefits which spouses and even heterosexual de facto partners are entitled to. This is a serious concern. As a matter of principle, the federal opposition has indicated that, were it to come to office, it would ensure, through federal legislation, that established and stable same-sex relationships are given the same legal recognition as de facto relationships of a heterosexual kind so that there is no discrimination. We need to address that issue. We will be proposing amendments in the Senate which we hope the government picks up so that the issues do not fall to the next administration. A simple mechanism could address them by amendment.

The other point that I draw the attention of the House to is that the design of these measures does not properly take into account the period between age 65 and age 70. The bill, as it stands, would effectively allow various benefits up to the age of 65. So a federal magistrate could apply for a disability pension up to the age of 65, and their spouse would be eligible for a death benefit up to the age of 65. But, given that federal magistrates are entitled to give service until they are age 70—and we would hope they would continue to—what happens in that period? This bill does not address those matters effectively. There is an oddity—for example, if a magistrate age 64 and 11 months were to die then their spouse would be eligible to a sizeable death benefit; if the magistrate were to die two months later after passing the age of 65, there would be no entitlement to the death benefit.

Of course, we expect magistrates to continue to serve—we would like them to continue to serve—but it really does present a conundrum to us as parliamentarians to pass legislation which has this gap in it. I understand that amendments will be proposed in the Senate to try to address these matters. Again, I commend those possible amendments to the government with a view to fixing that small area of omission so that federal magistrates are able to continue to serve past the age of 65 until their compulsory retirement at age 70 without a sense that they have passed a point at which they are creating a difficulty for the support of their spouse. I hope the government will support the amendments that will be moved by the shadow Attorney-General, Senator Ludwig, in the Senate. With those remarks, and with the reflections that were encouraged by the contribution by the member for Fisher, who again I thank for opening up that particular area of debate, I commend the legislation to the chamber.

See this speech in context