Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Minister for Health) Share this | Link to this | Hansard source

I rise to speak on the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006. I would like to indicate at the outset that Labor supports the bill—as far as it goes—as it appears to be a perfectly sound and uncontroversial piece of legislation and I know that federal magistrates have been concerned to have it attended to for a number of years. However, I would like to flag Labor’s concern that, once again, persons in same-sex de facto relationships are being shortchanged by the government, despite promises made time and time again by members of the government that this will be fixed in an orderly way. In fact, the bill makes things slightly worse for people who are in same-sex de facto relationships. The bill as it stands not only fails to attend to and address existing discrimination against same-sex de facto couples but also introduces a new form of discrimination against them by denying same-sex partners of federal magistrates the same rights to death benefits that spouses and now even heterosexual de facto partners are being given.

I will foreshadow now that Labor will in the other place be moving amendments which will seek to address this inequity that is presently in the bill. I will come back to that matter in a moment, but firstly I would like to give a brief overview of the bill. The bill has a twofold purpose: it seeks to enact a pension scheme for magistrates who are no longer capable of doing their job for medical reasons and it updates the provisions for magistrates’ death benefits.

Turning first to the bill’s disability pension scheme, this bill enacts a pension scheme for federal magistrates who are no longer capable of doing their job for medical reasons, allowing magistrates to retire due to ill health and to receive a payment. This provision would make the position of federal magistrates more consistent with other federal judicial officers. At the moment, federal magistrates operate under a separate scheme to the pension scheme that exists for other judicial officers under the Judges Pensions Act 1968, which I note is scheduled for amendment during this sitting period. Federal magistrates receive a superannuation fund or retirement savings account to which the Commonwealth contributes.

Currently, if a federal magistrate retires before the age of 65, they are not eligible to receive a pension. This creates an incentive for federal magistrates to continue to work, even if illness or disability is preventing them from effectively performing their job. Obviously, that is not desirable for the administration of justice and the proposed legislation will alter this situation, allowing a federal magistrate who retires for reasons of illness or disability to have access to a continued source of income via the judicial pension scheme.

Specifically, the scheme enacted by this bill will allow a magistrate who retires to request, post retirement, that the Attorney-General certify that their retirement was due to permanent disability or infirmity. This is modelled on the process that occurs for other federal judicial officers under the Judges Pensions Act. A refusal by the Attorney-General to certify would be appealable to the Administrative Appeals Tribunal. If the request is granted then the federal magistrate in question would be eligible to receive a pension of 60 per cent of a federal magistrate’s salary until they reach the age of 65. They would continue to be eligible to receive superannuation contributions from the Commonwealth until that age as well.

Labor supports this provision not only because it brings federal magistrates into line with other federal judicial officers but also because it removes the incentive for federal magistrates to continue on in a position after ill health or disability begins to affect their performance. Given the difficulties in and restrictions on removing judges on the grounds of poor health—difficulties and restrictions which are there for other important reasons—this is a sensible option. It will help to maintain the high standard of the Australian judiciary.

As I said at the outset, this bill also updates the provisions for magistrates’ death benefits, bringing them more closely into line with those of other judges. The new provisions would allow lump sums for death benefits to be paid to eligible spouses and eligible children if a magistrate dies before the age of 65. These payments would be equal to the superannuation contribution that a federal magistrate would have received had they lived to that age. Magistrates who retired on the disability pension scheme established by this bill would also be eligible for death benefits.

A point that is contained in the bill before us that I want to bring to the attention of the House is that the bill will extend death benefits not only to spouses in a marital relationship but also to heterosexual de facto couples. Yet the bill will not extend death benefits to same-sex de facto couples. This bill, once again, highlights how ludicrous and inconsistent it is to continue to refuse access to these types of benefits to same-sex de facto couples. I note, for example, that same-sex de facto couples are now included under the Retirement Savings Accounts Act 1997 under the definition of an interdependency relationship. However, this bill seems to be a step back from this position.

We cannot understand what the government’s rationale could possibly be for continuing to exclude same-sex de facto couples, particularly when the Attorney, on a number of occasions in the past few years, has promised that the government is working through this in a methodical way. I know the member for Leichhardt, the member for Wentworth and others have, at times, argued within government ranks for these changes. But we do not see any action being taken—even when an opportunity like this presents itself. It could be done in a piece-by-piece way, if the government is not prepared to make more comprehensive changes—changes which Labor has committed itself to—in terms of having equality between different de facto relationships.

As I said at the outset, I can foreshadow that Labor will be moving amendments in the Senate to provide that same-sex de facto couples can access these benefits on the same grounds as heterosexual de facto couples. I hope that the government will support this amendment, and I call on those in the coalition ranks who share our view that this is important, as a change that needs to be made consistently through a range of legislation, to urge their government to accept this suggestion.

Labor will be moving amendments to remove discrimination because there is simply no rationale for continuing to refuse access for these benefits to same-sex couples. The logic behind the payment of a spousal death benefit to a spouse is quite simple. These are benefits in recognition of the immense work and contribution that federal magistrates put in during their tenure, and it is a payment made to ensure that their partners are not left high and dry in the event of their death. We can see no logical reason why payment of benefits to spouses after death should not be extended to include same-sex de facto partners. As I said earlier, the bill already includes heterosexual de facto partners. Simply put, the contribution of a federal magistrate in a same-sex relationship is the same as that of a married federal magistrate, yet the legislation as it stands does not allow for a death benefit to be paid to their spouse.

To be perfectly frank, it is about time that Australian society extended these benefits to persons in same-sex relationships. There is no longer any argument against the extension of these benefits, and, as everyone in this House should know, the issue of the legality of homosexuality and such relationships has been well and truly resolved. It is hard to believe that it is over a decade since the Keating government passed the Human Rights (Sexual Conduct) Act 1994, which overrode Tasmanian laws outlawing homosexuality. The debate on this matter is well and truly settled. And, as I have said, Labor has committed to a comprehensive plan for removing discrimination between de facto heterosexual couples and de facto same-sex couples.

Under the Howard government we have had a decade of inaction in respect of the removal of discrimination against Australians in same-sex relationships. The enormity of this discrimination was made abundantly clear in the recent report of the Human Rights and Equal Opportunity Commission entitled, Same-sex: same entitlements. That report found a total of 58 pieces of legislation which discriminated against same-sex couples. With this legislation, I believe the government is hoping to make that total 59 pieces of discriminatory legislation.

In some cases, of course, that discrimination may be beneficial. Some benefits are reduced where a person is living in a marriage-like situation with a person of the opposite sex and this does not have the same impact for same-sex de facto relationships. In those limited circumstances, some same-sex couples actually get a financial advantage out of the discrimination, but for the most part they are denied the benefits and certainly the recognition which are provided to heterosexual de facto couples. As I said, the shadow Attorney-General, Senator Ludwig, will be moving amendments in the Senate to remove this discrimination.

I hope that the government will support these amendments, but I must say that I do not hold out any great hope. The government has previously indicated in media releases that it will support if not these specific amendments then certainly some of these types of measures, and I hope that those pledges translate into Liberal and National Party support for our amendments. I draw the attention of the House to the Attorney-General’s media release of 21 June this year in response to the HREOC report, in which he said:

In connection with interdependent relationships, including same-sex relationships, the Government will consider making further changes to the relevant legislation on a case-by-case basis.

This case is before the parliament. It can be done now. It does not require any extra action. It will not have any extra impact on other pieces of legislation. It seems to me that if the Attorney-General is going to stick to his word, he should support our amendments when we move them in the Senate. It is a case that is about as clear-cut as it gets, and the clear benefit being denied to same-sex couples in de facto relationships is unwarranted.

We also foreshadow that we will be moving two additional amendments in the Senate. These amendments will provide for federal magistrates to be entitled to apply for a certificate of impairment before retirement rather than afterwards and also provide for the certificate to be issued by a panel of doctors rather than the Attorney-General. These are two common-sense amendments which will provide greater security to federal magistrates who are contemplating retirement and will provide for a panel with greater expertise in these matters to be able to make judgements on whether or not a federal magistrate can continue to work. Of course, it will also remove any suggestion of political interference. Again, I hope these amendments will receive government support.

I would like to address one more issue. It is an issue which it appears that the government has addressed partly but not completely. The bill as it stands without amendments would effectively allow the various benefits up until the age of 65. So a federal magistrate could apply for a disability pension up until the age of 65 and their spouse would be eligible for a death benefit up until the magistrate turned 65 and so on. This creates an incongruity which was pointed out in the report of the Senate Standing Committee on Legal and Constitutional Affairs. Simply put, the federal magistrates have a compulsory retirement age of 70, so there is a gap of five years between the benefits structure being introduced by this bill and the retirement provisions already in existence.

The issue was brought up in the inquiry by the Federal Magistrates Court, which called on the government to amend the legislation to remove this inconsistency. I note that the government has circulated some amendments to this bill. They are partly based on the recommendations of the Senate committee and go some way towards addressing the inconsistency and age gap that the government has let creep into this legislation. However, at least up until now, the government has ignored at least half of the committee’s recommendations. The government, in items 2, 3 and 5 of the amendments, partially closes this age gap. Unfortunately, though, it does not seem to have gone the whole way, and we cannot understand why.

Some of the inconsistency has been removed, and a federal magistrate between the age of 65 and 70 is now entitled to retire and apply for a disability pension. However, superannuation contribution continues to cut out at 65. So a federal magistrate who retires at 68 and receives a disability pension will not be eligible to receive superannuation for the two years left on their pension, but a federal magistrate who retires at 63 will receive superannuation for two years until they attain the age of 65. Similarly, death benefits continue to be awarded only to magistrates up to the age of 65. If a magistrate is 64 and 11 months old when he or she dies then the spouse is eligible for a sizeable death benefit. If it is one month later, that benefit does not exist at all. It is difficult to see the logic behind this. The government do appear to have agreed with the findings of the Senate inquiry and have made some movement on the issue, but they continue to maintain inconsistency for the remaining parts of this provision. In the Senate, Labor will move amendments to remove the remainder of that age gap from this legislation and, again, we hope that the government will support these amendments.

In conclusion, I reiterate that Labor supports the outcome of this bill and will vote in favour of it. However, we will be moving amendments in the Senate to try to improve it. We will be moving amendments in the Senate to ensure that same-sex de facto couples have access to these benefits on the same grounds as heterosexual de facto couples and we will be moving the remaining recommendations of the Senate committee report and the two recommendations I touched on earlier. I hope that the government will consider this on the case-by-case basis that the Attorney previously promised. It is a good opportunity to fix what is a serious anomaly. I call on the government to consider those amendments and I hope that, in the other place, both sides of parliament will be voting in favour of them. Aside from those reservations, I commend the bill to the House.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

I am very pleased to join in the debate on the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006. Since the government’s election to office, one of its best initiatives in the area of the Attorney-General’s and justice portfolios is the establishment of federal magistrates. Federal magistrates have carried out a very important role since 2000 in helping to ensure that Australia gets the sort of justice it deserves in the federal arena. We have had a number of very high quality federal magistrates appointed, and they certainly help to ensure that we as a country have the necessary judicial officers available in a range of areas to ensure that people are able to obtain justice.

It is important that the federal magistrates service be independent. It is independent, and the government has always supported the independence of the federal magistracy. With respect to the vitally important role that magistrates have, it is essential that their employment conditions be such that they are appropriately remunerated at a level that befits their responsibilities and also, of course, that their benefits extend to giving them some level of support in the event of disability or death. Their benefits must be set at a level that is reasonable, just and fitting given their responsibilities.

This bill amends the Federal Magistrates Act 1999 to provide federal magistrates with disability cover and death benefits. It seems almost an oversight that the terms of employment for these senior magistrates have not, up until now, included any specific entitlements for their retirement should it occur as a result of disability or in the unfortunate case of death while in service of the judiciary. I do not know whether we are appointing people who are fit and well and unlikely to need to access these particular services, but clearly it is a problem when we contemplate that federal magistrates are able to hold office until age 70.

I will briefly digress to say that I think history has recorded that the constitutional amendment that required judges to retire at age 70 is not entirely in the interests of the country at the moment. With a declining birthrate, an ageing population, increasing levels of health and increasing longevity, people these days are able to serve beyond 70 and I would like, at some stage, to see a government amend the Constitution once again to make provision for judges of the High Court to serve until at least age 75. The old life appointment was probably inappropriate, but in practice it worked fairly well because judges who were incapable of continuing their work usually retired. I think that to force judges to retire at 70, as is currently the case, is regressive and retrograde, and it deprives Australia of the judicial services of some excellent judicial officers just because chronologically they happen to be 70-plus.

The current situation with federal magistrates is that they are entitled to make a contribution equal to 13.1 per cent of their salary to a super fund or towards their savings for their retirement. But the lack of entitlements or insurance in the case of disability or death brings about the obvious dilemma. In the case of disability, if they are to be removed due to incapacity before age 70 and they have no protection, they may well be unwilling to leave. There is a fairly messy procedure required to actually dismiss a federal magistrate or a federal judge. That is why this legislation is important. It brings about the sort of reform that is necessary in the interests of fairness and equity but also in the interests of the appropriate administration of the judicial system in Australia.

It would be terrible if we had people clinging to office even though they had lost their ability to fulfil their role at a satisfactory level, because they simply could not afford to retire. This bill will introduce changes that will help to rectify the situation. It introduces changes that will make it easier and less financially disadvantageous for a magistrate whose health is deteriorating to step down voluntarily from office. The bill also introduces changes that, on the resignation of a federal magistrate due to permanent disability or infirmity, will give the Attorney-General the ability to certify that disability is the reason for the premature departure, which then would entitle the resigning magistrate to a pension equal to 60 per cent of his or her salary until he or she turns 65 or dies, whichever comes first.

In addition to this payment, the retired magistrate would receive ongoing superannuation payments from the Australian government while in receipt of that disability pension. The superannuation payments would be the same as if the magistrate had continued working up until age 65. Additionally, the bill provides for the introduction of a benefit that will take effect only on his or her death while in office or, in the case of a former magistrate who has left office as a consequence of disability, if he or she dies before attaining the age of 65. The benefit is in the form of a lump sum payment that is payable to the spouse of the deceased magistrate and also to the dependent children of the deceased magistrate, should the deceased magistrate have dependent children. The lump sum would be an amount equal to the superannuation payments that would have been made from the date of death to his or her 65th birthday had the former magistrate not passed away.

I am pleased that the opposition is supporting this bill, even though it is doing so with some reservations. The federal magistracy is far too important an institution to Australia for it to be politicised, and I am pleased that both sides of the House will be voting for the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006. The changes reflect the great importance of the roles of senior federal magistrates and I am particularly pleased to be able to commend this bill to the chamber.

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

I thank the member for Fisher for his comments on the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006. Certainly it is true that on this issue there is broad bipartisanship, but there are a number of significant issues which are material to this debate on which I wish to make comment. Before I do and before the member for Fisher leaves, I noted his comments about the compulsory retirement age of justices of the High Court, Federal Court and Federal Magistrates Court, a provision that flows from constitutional changes that were made in the early seventies, I think. That was a different time and Australia was a very different society. We have now introduced age discrimination legislation such that people, as long as they are fit, capable and able, can continue to work. We recognise and seek to encourage people to do so. Without making anything other than an oblique comment, I note that the leader of the parliamentary party to which the honourable member for Fisher belongs is proposing to contest the next election which, if he is successful, will take him well past the retiring age that is proposed or required for judges.

I do agree with the member for Fisher that there is a decent and proper case to be made for reviewing those provisions. It will not be easy to change, because they are constitutionally entrenched. But they were entrenched at a time when there was essentially a compulsory retirement age—65 for men and, I think, 60 for women. In those circumstances, it was understandable that people felt it odd that we did not have such a rule that applied to judges. But I say to the member for Fisher—and I commend his reflection on this—the corollary is that, if we do bring ourselves to a position where we support a change to that regime, we need to have a mechanism for dealing with people who do not understand that they have passed the point of competence. That can happen even with a retirement age of 70. I am aware of instances where members of the federal judiciary had to be confronted by their chief justices on the question of whether they were still fit to perform their duties, notwithstanding that they were well under the age of 70. The situation is that, if a judge or person appointed under the Constitution to a chapter III court were to decline an invitation to consider their future in those circumstances, there really is no effective mechanism for addressing it. The only way a judge can be removed is by an address to both houses of the parliament. We have no independent external mechanism to deal with what inevitably will become an issue in the future.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

Mr Deputy Speaker, I seek to intervene.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

Is the member for Denison willing to give way?

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

Yes.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

I agree with the honourable member for Denison that it is appropriate, as I said, that in 2007 judges ought to be able to serve beyond the age of 70. I think he quite rightly drew to our attention the fact that there needs to be a mechanism, and my question to the honourable member is: what sort of mechanism do you think should be put in place? I think your suggestion is valuable—it is essential—and I accept that you would need that mechanism if you were to have the age extended.

Duncan Kerr (Denison, Australian Labor Party) Share this | Link to 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.

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

Andrew Southcott (Boothby, Liberal Party) Share this | Link to this | Hansard source

Although there is no requirement to do so, before speaking on the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006, I disclose that my father-in-law is a federal magistrate. The bill amends the Federal Magistrates Act 1999 to provide statutory disability and death cover for federal magistrates. Currently, under the Federal Magistrates Act there are no specific entitlements which cover retirement on the grounds of disability or in the event of death. As a consequence of the changes to the Constitution after the referendum of 1977, federal magistrates hold office until age 70 unless they resign, die in office or are removed by the parliament on the ground of proven misbehaviour or incapacity before this age. One of the issues is that, in the absence of adequate protection in the event of serious disability, a federal magistrate whose performance is significantly impaired for medical reasons may be unwilling to resign. This bill fills a gap in the disability cover for federal magistrates.

This bill has gone to a Senate committee, and in its report of 2 May 2006 the committee recommended that the age limit specified in the bill limiting eligibility for disability cover and death benefits be raised from 65 to 70 years. The proposed amendments to the bill raise the age limit for payment of a disability pension to 70 years and therefore give effect to this recommendation, in part.

This is a good bill. I note that it is supported by the opposition. It removes the incentive for a magistrate to stay on in office when they are faced with serious ill health. These amendments provide federal magistrates with cover in addition to that which was proposed in the original bill when retiring on disability grounds. With those brief remarks I commend the bill to the House.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Firstly, I apologise. I had some House duty in another place, and I appreciate that colleagues have extended some courtesy to me. I thank them for that. I note that those who have addressed this bill include the members for Gellibrand, Lowe, Denison, Fisher and Boothby. I thank them for the contributions they have made. Before I deal with a couple of observations on matters that I understand have been the subject of comment, I reiterate that this bill will provide federal magistrates and their dependants with improved financial protection in the event of serious disability or death. The government acknowledges the significant contribution magistrates have made to an efficient federal civil justice system. It is the government’s view that the public interest is served by ensuring that federal magistrates with disabilities which prevent them performing their duties retire with adequate financial provision.

Currently, a federal magistrate whose performance is significantly impaired for medical reasons might nonetheless be unwilling to resign. This is particularly important where magistrates have tenure to age 70 and can only be removed on grounds of proven misbehaviour or incapacity. If the performance of a federal magistrate were significantly impaired for medical reasons, it is desirable that the lack of adequate disability provision not be a barrier to the magistrate’s willingness to resign.

I understand that during the course of the debate there was some concern about this measure in the context of superannuation benefits, and people foreshadowed that there may be amendments in another place. I understand they may seek to do that. I say only that moving amendments to judicial pensions and those in relation to magistrates in isolation from the wider class of people to whom that issue may be relevant would not be, in my view, appropriate. While the government has said that it wants to deal with those—

Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Minister for Health) Share this | Link to this | Hansard source

Mr Deputy Speaker, I seek to intervene. Would the member agree to a question on this matter?

Dick Adams (Lyons, Australian Labor Party) Share this | Link to this | Hansard source

Is the member for Berowra willing to give way?

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I was going to expand on the matter, but I am willing to answer a question. It may be appropriate to do that.

Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Minister for Health) Share this | Link to this | Hansard source

Can the Attorney, given his view that this matter should not be dealt with in isolation, provide us with any information about when he is going to act on it not in isolation? Your government has promised time and time again that this issue would be dealt with. Why should the Labor Party or anyone else not pursue this case by case, as you have indicated you want to consider it? At other times you say that, when it is done case by case, it is being done in isolation. I do not understand the government’s position to be consistent at all. Could the Attorney explain when action is going to be taken?

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The government is giving consideration to these matters. I have made that clear. The government has said that it will address issues when they are raised and deal with them on a case-by-case basis. But believing that it is appropriate to do it on an individual case basis, I think, flies in the face of reality. If you are going to expand entitlements to what are defined benefits superannuation measures, a much wider class of people in the group of cases that you want to deal with have to be considered. I do not believe it is appropriate to deal with the judges or magistrates in isolation from returned servicemen, public servants or even members of parliament.

Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Minister for Health) Share this | Link to this | Hansard source

When are you going to do those?

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I simply make the point that there is a wider range of issues that have to be looked at, and you would not separate out judges or magistrates from the wider class. In dealing with the issue of defined benefits superannuation entitlements, you would want to make those decisions with some very clear advice as to what the impact would be on the financial bottom line. If you dealt with judges and magistrates in isolation, the impact would probably not be very significant in budgetary terms. But if you move to the wider class of defined benefits schemes, you are talking potentially of billions of dollars being added to the forward estimates.

The opposition may think it is fine to look at these matters in isolation and to do them without regard to the budgetary impacts and future budgetary impacts. If that is the way they see budgeting, they can take the approach that they have. They are welcome to bring their amendments forward, but that does not mean the government would support them when the broader financial implications have to be addressed in considering the principal issue. I simply make that point.

While relatively new, the Federal Magistrates Court is now an integral and important part of the federal civil justice system. The government is committed to ensuring that federal magistrates have adequate and appropriate terms and conditions of service. This is a very important measure in assisting to ensure both the continued and high calibre of appointments and that federal magistrates can focus on important duties without being distracted by concerns over the adequacy of the protection available to them and their dependants in the sad event of disability or death.

I just say in a personal way that I think we have been extraordinarily well served by the magistracy. They have acquitted themselves with diligence, application and professionalism. The outcomes are there to be seen in the very considerable case loads that the Federal Magistrates Court disposes of. Dealing with this issue is important for ensuring that they understand that the tasks they are fulfilling are recognised as important and that we are determined to deal with the disability issues.

Question agreed to.

Bill read a second time.

Messages from the Governor-General recommending appropriations for the bill and proposed amendments announced.