Graham Perrett (Moreton, Australian Labor Party, Shadow Assistant Minister for Education and Training) Share this | Hansard source

I'm happy to speak today on the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019. Two years ago almost to the day, I spoke on legislation introduced into the 45th Parliament that was broadly the same as the two bills currently before the House. Two years ago Labor didn't support these bills, and Labor still doesn't support these bills.

So what's changed in the last two years? For one, the Australian Law Reform Commission has delivered its comprehensive review into the family law system. When the ALRC review was commissioned by the Attorney-General at the time, George Brandis, he described the review as 'the first comprehensive review of the family law system since the commencement of the Family Law Act in 1976'. Did the ALRC review recommend merging the courts, as these bills intend? No. The ALRC didn't recommend anything remotely like the reform that these bills will implement if they are passed.

Since I last spoke on these bills, the Joint Select Committee on Australia's Family Law System was appointed and asked to inquire and report on a wide range of issues relating to the family law system in Australia. I'm a member of that committee very ably chaired by the member for Menzies, the previous Deputy Speaker. Has the committee tabled a final report? No. The committee did table an interim report, and that majority interim report contained no recommendations. Labor members of that committee tabled a dissenting report, which did make recommendations. One of those recommendations was to not proceed with the Federal Circuit and Family Court of Australia Bill. Labor members made that recommendation because of evidence heard by the committee about the dangers of proceeding with this very reform.

One of the witnesses who gave evidence to the committee about this proposed reform by the Attorney-General was former Chief Justice the Hon. Elizabeth Evatt AC. She said:

… the proposed merger of the Family Court and the Federal Court is likely to undermine the integrity of the Family Court and lead to undesirable outcomes for the parties.

The Attorney-General won't wait for the final recommendations of the joint select committee. He won't wait for the evidence given to that committee about the merger to be considered and recommendations made. He is charging ahead with his ill-conceived plan to abolish the Family Court as a specialist and standalone superior court.

The Family Court of Australia is one of the great legacies of Gough Whitlam. The establishment of a specialist court whose sole purpose is to hear family law matters was a distinguishing feature of those groundbreaking reforms in 1975. In 1974 the Senate Standing Committee on Constitutional and Legal Affairs said the Family Court would be essential to give substance to key aspects of the Family Law Act. Anyone who spends time in family courts will quickly realise that, by necessity, those courts function quite differently from other general law courts. The matters dealt with in the family courts are unique to their jurisdiction. They make decisions based on the law but, often, getting to that determination involves a delicate analysis of facts and emotions and, in most cases, other complexities like family violence, mental health issues and drug and alcohol issues. It is quite different from every other area of the law. It is why many lawyers choose to practise exclusively in family law or don't practise in that area at all. It is an area of law that doesn't suit everyone. It is a specialist area of the law that needs a specialist court.

In contrast, the Federal Circuit Court is a generalist court. It hears the less complex family law matters, if there is such a thing, but it also hears a great many migration matters and many general federal law matters. In the last year the Federal Circuit Court of Australia has had 6,555 applications filed in migration law and 3,778 applications filed in general federal law. The most recent annual report of the Federal Circuit Court says there is a 'growing number of applications in areas of general federal law' including 'an increased number of applications filed in the fair work jurisdiction' and a 'sharp increase in migration filings', which the report says is a 'pressing issue for the court'. The annual report goes on to warn about the increased filings in migration law. It says:

Filings continue to grow at an unprecedented rate and this growth is placing increasing pressure on judicial resources.

Yet these bills will effectively abolish the standalone specialist Family Court and squash it into an already overstretched and under-resourced generalist court.

This is not reform. This is sabotage. It is so absurd that yesterday afternoon there was a joint media release issued from the most respected legal bodies in Australia, including the Law Council of Australia, Community Legal Centres Australia, who were at the frontline, the National Aboriginal and Torres Strait Islander Legal Services and Women's Legal Services Australia along with the first Chief Justice of the Family Court and the second Chief Justice of the Family Court. The media release was scathing about this proposed reform from the Attorney-General. Former Chief Justice the Hon. Elizabeth Evatt AC said this in the media release:

The increasing number of cases in which issues of family violence and child abuse are raised has led to an even greater need today for family law jurisdiction to be vested exclusively in specialised judges who can give their full attention to the needs of family law clients without being diverted to exercise other unrelated jurisdictions. The current bill undermines this principle, is not in the public interest and should not be enacted.

Former Chief Justice the Hon. Alastair Nicholson AO RFD QC had this to say about the reforms in these bills:

It is unbelievable that Government would propose the dissolution of a Federal Superior Court in this fashion without the most careful and searching Public Inquiry and without carrying out significant research and without consulting the many experts in this field.

The National Aboriginal and Torres Strait Islander Legal Services say this bill will 'disproportionately impact the most vulnerable, including Aboriginal and Torres Strait Islander children and families who need the most support'. So these bills are friendless. They're as lonely as a broken heart. They're like the last Tasmanian tiger, Benjamin. Remember that footage of him walking around a cage in the Hobart Zoo? The last thylacine—that's what these bills are. They're completely friendless.

So why is the Attorney-General so intent on pushing this reform through? That's a very good question. His media release, just 10 days ago, said the legislation would create one set of forms; one set of procedures, rules and practice management styles; and a single entry point. Let's just take these one at a time. The current Chief Justice, in his year in review contained in the recent Family Court of Australia annual report, details some projects currently being undertaken by the court itself—ones that don't require legislation. One of these initiatives is the harmonisation of the notice of risk and registrar delegations. The Chief Justice says this initiative is 'a precursor to formal rules harmonisation', which I will get to in a minute. The courts themselves have already redesigned each of the forms used for risk notification into a comprehensive notice to be called the 'notice of child abuse, family violence or risk'. It will be mandatory to file this notice with every initiating application response and application for consent orders seeking orders under part VII of the Family Law Act. The application forms in both courts are currently identical. There is a box at the top for you to tick which court you are filing the application in. That's the only difference. This bill is not needed to harmonise the forms of both courts.

The second reason the Attorney-General has given—to create one set of procedures, rules and practice management styles—has already been addressed by the courts themselves. The Chief Justice, in his annual report, says:

The second area being harmonised and expanded as a priority is the rules that delegate judicial power to registrars in the family law jurisdiction.

Don't get me wrong—registrars do great work and let judges get on with their important job. The Chief Justice goes on to say this about the initiative:

This will allow registrars … to provide greater support to judges by assisting with case management work and free up judicial time so that judges can focus on determining the most complex matters and hearing trials.

That's a sensible reform—one that I support—but one that does not require the passing of this legislation. The Chief Justice also details an initiative to reconcile case management procedures in family law across the two courts. In January, the Chief Justice issued the first joint practice direction, 'Core Principles in the Case Management of Family Law Matters'. That practice direction, which the courts and their users are required to adhere to right now, did not then and does not now require the passing of these bills.

The Chief Justice also shared in the annual report the work of the joint rules harmonisation working group, which has been progressing the harmonisation of the Family Court rules and the Federal Circuit Court rules over the past 12 months. The working group's efforts have produced a complete draft of the harmonised rules, which has already been distributed to all judges for consultation and will then be distributed to the profession and other stakeholders for external consultation in the second half of 2020—which, according to my watch, is about now. That's how far along this process that will result in one set of rules over both courts is. And, I stress, this did not require the passing of these bills.

The only other point the Attorney-General made in his press release was that advocacy for the need for these bills was for a single point of entry. As I've said previously, the application process for filing in either the Family Court or the Federal Circuit Court requires the same form, and the applicant simply ticks a box as to which court they're filing in. I would suggest, after speaking with practitioners, that in most cases this is actually done by guesswork. Matters are routinely moved between both courts. For instance, if an application is filed in the Federal Circuit Court but is actually complex, it will then be moved up to the Family Court. A single point of entry where the registry determines which court the application should be filed in makes sense, but it doesn't require the merging of the two courts.

So far, out of the Attorney-General's shopping list of reasons why these bills need to be passed, none require the courts to merge or this legislation to be passed. The Attorney-General claims that 8,000 additional cases could be resolved each year—a noble aim—as a result of efficiencies delivered through the restructure. This reference is from the desktop review conducted by PricewaterhouseCoopers back in 2018. We know a couple of things about that PwC review. We know it was conducted over a period of six weeks, it didn't consider detailed or broader reform opportunities and it did not consider revised budgetary allocations or reform opportunities within general law. One of the partners of PwC gave evidence to the Senate Legal and Constitutional Affairs Legislation Committee and said about their recommendation for reform:

… we recommended in the report that the potential impacts of all opportunities identified be explored further to fully understand their impacts, including through further data capture and analysis.

The partner also told the committee:

Our focus of the report was very clearly on operational data; it didn't consider detailed reform opportunities.

In fact, the report says:

Where there is likely a divergence in operational changes proposed by this Review and subsequently by the ALRC, advice should be sought from court stakeholders to understand where and how opportunities could be implemented in practice and which would bring about the greatest positive outcomes. Assessment of those opportunities, informed by detailed analysis, should underpin decision-making.

Of course, the ALRC did not recommend the merging of the two courts. The PwC report does not provide any credible economic foundation for the merger of the Family Court and the Federal Circuit Court.

There have been 67 inquiries and reports into the family law system since 1974. None of those 67—not one—has recommended the reform contained in these bills. There have been 67 inquiries, reviews and academic studies and none have recommended the reforms that Attorney-General Porter is attempting to inflict on Australia's Family Court system with these bills. There's a reason none of those 67 reports have recommended this reform. It is because it is bad policy. We know that. Lawyers know that. Frontline legal services know that. Former judges know that. And families using the courts will find that out very quickly if these reforms are implemented. Someone who is accessing the courts regularly for her clients, Ms K, a family lawyer with a remote practice based in, let's say, South-East Queensland, has told me: 'The ongoing delivery of specialist services to children and families requires a specialist court, and that we already have.' She's not alone in that opinion. Former chief justices, the Law Council of Australia, National Aboriginal and Torres Strait Islander Legal Services, Community Legal Centres of Australia, Women's Legal Services Australia and 110 stakeholders have all publicly called on this parliament to vote against these merger bills. They say that the passing of these bills will increase costs, increase delay and increase stress for families.

These bills should be ripped up and a proper process of reform should commence, one in which stakeholders who know the courts best should be consulted. Credible evidence should be assessed and proper reform designed for these important courts and the families who rely on them. Perhaps waiting for the Joint Select Committee on Australia's Family Law System, chaired by the member for Menzies, would be a good start.

So I do not recommend supporting this fundamentally flawed legislation, but I do support the second reading amendment moved by the member for Isaacs.

See this speech in context