John Murphy (Lowe, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition) Share this | Hansard source

I too rise to speak in support of the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006, though, as with many other bills in this House, I do have some reservations about certain aspects of the bill. In that respect, amendments have been proposed by the opposition which the member for Denison has just referred to and which I endorse. I ask members on the other side to consider these amendments on their merits before exercising their votes. We hope that the Senate pays close attention to them too.

It would be pertinent to make an inquiry into the genesis of this bill. Though the government will never admit it, the bill was cynically produced to address a single case that had arisen in Brisbane concerning a Brisbane magistrate. We should all be concerned about bills which seek to address specific examples rather than enunciate a general principle of law. There can be no doubt that the Howard government will leave behind an appalling legacy of ‘in the heat of the moment’ drafting and knee-jerk reaction laws to address specific and one-off incidents. I ask: where is the good long-term policy in this? Why are laws from this government reactive and not proactive? Why does it take one incident to kick-start the government into action? After 11 years the government should know better.

I say all this as a precursor to the bill before us this morning. It is the Federal Magistrates Court which is the subject of this bill. My remarks will focus on the interplay of case management between the Federal Court of Australia and the Federal Magistrates Court. In light of the growing interplay of case management between both courts, it defies logic to have great disparity between entitlements afforded to Federal Court judges and Federal Magistrates Court magistrates, something which this bill belatedly tries to address.

It was clear that the government’s intention when establishing the Federal Magistrates Court was that it would be a low-cost court. Presumably it was as a result of this intention that federal magistrates were not covered by the Judges’ Pensions Act 1968. The Judges’ Pensions Act applies only to Federal Court, Family Court and High Court judges, as we know. This is very telling of the Howard government’s approach to the administration of justice. What message does it send when the government engages in an attitude of penny pinching towards its own judiciary? We take great pride in the rule of law in Australia. It is a cornerstone of a free nation that laws that emanate from the parliament be upheld by a free judiciary. The judiciary is one of the most important arms of government, particularly given the Howard government’s predilection for exercising executive power without proper public scrutiny, yet the government treats the third arm of government, including the Federal Magistrates Court, with complete disdain, in my opinion.

Notwithstanding that, the judiciary are often given appalling laws to work with—whether they are poorly drafted or attempt to confine all power in the hands of the executive through the privative clauses. The laws that come out of this parliament must be interpreted by the judges and magistrates of our jurisdiction. The saying ‘garbage in; garbage out’ comes to mind. A bad law will result in poor administrative procedures which must be ironed out by long-suffering members of the federal judiciary. Nowhere is this better seen than in the increasing workload of the federal judiciary. Ever-growing lists of cases are being piled and filed in the Federal Court and Federal Magistrates Court. Members are no doubt mindful of administrative law cases, particularly those concerning the powers exercised under migration law. These administrative cases consume very high percentages of court time and effort.

We should also note the modern phenomenon of jurisdiction swapping that is endemic within the Federal Court and the High Court of Australia. While the Federal Magistrates Court is supposed to be a low-cost court to deal quickly and, in the eyes of the government, cheaply with the ever-growing list of court cases which clog our administrative procedures, nothing has changed. The Federal Magistrates Court is dealing with large numbers of long and complex cases, yet in its usual attempt to pinch pennies wherever it can, federal magistrates are ineligible to receive a pension if they retire before reaching the age of 65. Federal magistrates do complex and extremely important work which, in many ways, is similar to the work completed by judges, yet they are denied similar benefits. In practice, there is little difference in complexity between many of the cases heard in the Federal Court and the Federal Magistrates Court. So I ask: why the disparity in benefits? No doubt some matters heard by federal judges are extremely complex in nature. However, whatever higher complexities the judges of the Federal Court must contend with, this is counterbalanced by the caseload issues within the Federal Magistrates Court.

The Federal Court and Federal Magistrates Court, and their judicial and administrative officers, are working increasingly hard as more cases are piled upon them. The filing and piling of new cases is not being assisted by the phenomenon of jurisdiction swapping, which I referred to earlier. In a bid to iron out caseload management the Federal Court and Federal Magistrates Court are being subjected to jurisdiction swaps in migration law, industrial law, intellectual property law, bankruptcy law and insolvency law. It would be a lengthy exercise to review all the legal administrative changes that have occurred within the Federal Court and Federal Magistrates Court during the Howard government’s tenure; however, one theme would be constant: the government is always pressing the judiciary to do law on the cheap rather than be effective.

There are good policy factors to maximise access to justice, particularly by addressing the financial cost of litigation. I am the strongest advocate for cheap and effective access to the law; however, court cost overheads should not be paid for at the expense of the entitlements of judicial officers. I say this once again in the context of the reality of the ever-increasing workloads: justice and the administration of just laws is expensive and time consuming. The execution of justice by our independent judiciary requires laws that afford rights and duties to the citizen and state. Enforcing these rights and duties is a monumental task. It is tempting—indeed this government has succumbed to the temptation—to cut corners in an attempt to reduce the cost of justice. By allowing the disparity between judges and magistrates to fester for so long the government has implicitly stated that magistrates are not as valuable as judges in the work that they do. That can be the only reason they have not had access to the same entitlements as judges.

We should not detract from the notable experience, higher skills and jurisdictional wisdom that a judge must exercise compared with a magistrate. There are obvious significant jurisdictional and legal distinctions between a judge’s role and a magistrate’s role. However, there are the same legal professional duties, often the same case preparation and the same time constraints in a legal matter before the Federal Court and one before the Federal Magistrates Court. Again, the exercise of jurisdiction swapping, which is often simply an administrative decision to shift matters from the Federal Court to the Magistrates Court, has ensured that this is the case. The substance of a matter does not change just because it has been shifted from one bench to another. The complexity of the laws applicable to the matter does not change because the case has been shifted from one bench to another. The case and laws are the same. The only thing that changes is that the matter is now before a magistrate and not a full judge. With that, the cost of administration of law drops. This sounds like a good thing—until we see the means by which the Howard government has attempted to cut costs.

There has also been a belated recognition by the Howard government that circumstances may arise in which a magistrate may feel compelled to retire before reaching the age of 65 years. In the eventuality that this occurs, the law must be sympathetic and make provision for such a circumstance. Magistrates in ill health ought to be given the option to retire rather than continue to sit on the bench. Given the lack of a process for removing magistrates suffering from ill health, this is a logical outcome. It is this aspect of the bill which I shake my head at. How could such an obvious change be denied by the government for so long?

This bill is a symptom of the broader issues of the administration of our federal justice system to which I have referred earlier—in particular, jurisdiction swapping and the ever growing lists. Members of this House will be aware that there are specific lists—particularly the migration law list—which are growing inexorably and are therefore constant sources of challenge to the Federal Court and Federal Magistrates Court. The practical issue is how to administer lists that seem to grow exponentially. I can only say that this government is determined to continue with populist policies. Making populist laws about affording access to a legal system results in the social cost of more cases. This government must be resigned to the fact that the administration of justice is an expensive affair. The manner in which the government seeks to delimit jurisdiction and rights of appeal to the federal courts is, in my view, not the way to go. In any event, looking at the growth in the cases of the Federal Court and the Federal Magistrates Court through a labyrinth of lesser quasi judicial tribunals, it is hard to justify the absolute cost of appeals, appeals upon appeals and so forth in the regime that has been put in place. And nor is this about cost per se. If justice were actually afforded, there would be a reduction in the number of absolute appeals and with it a reduction in the number of cases, and hence management of case load at the source rather than this constant jurisdictional shuffling.

I urge the government and all members of the House and the Senate to fight vigorously for the full natural industrial entitlements that judges and court, tribunal and administrative officers in our federal courts are properly entitled to. Further, I say that it is a false economy and a diseconomy to deny basic accoutrements to our magistrates in the hope of artificially lowering the price of justice. Further, such cutting of corners only diminishes the quality of service, in that magistrates—whom I note are human beings, like the rest of us—suffer the same vicissitudes of life and will fall sick, become frail, die or be otherwise unable to perform their duties at certain times in their lives before or after reaching the age of 65. In conclusion, for this reason the utilitarian ethic of simply cutting costs is a single- and bloody-minded approach to reducing cost. The real social cost of such policy is that magistrates become distracted with the daily cross that they must bear. The final and ultimate consequence of this cross is an uncharitable and unjust circumstance that distracts the magistrate and causes a diminution of service, to say nothing about the injustice to the magistrate. I commend the bill.

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