Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

I would like to indicate to the House that the government proposes that amendments (1) to (5) be agreed to and that amendment (6) be disagreed to and an amendment be made in place of it. I suggest, therefore, that it may suit the convenience of the House first to consider amendments (1) to (5) and, when those amendments have been disposed of, to consider amendment (6). I move:

That amendments (1) to (5) be agreed to.

The government is committed to achieving an effective and affordable civil justice system which will improve access to justice for all Australians. The Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 introduces important reforms to the case management powers of the Federal Court aimed at reducing unnecessary delay and time spent in court. Government amendments to the bill were agreed to in the Senate.

Amendments to schedule 2 to the bill were agreed to. Schedule 2 contains amendments which provide for more streamlined appeals pathways to reduce confusion for litigants and aid the Federal Court of Australia in the efficient management of its resources.

Amendments to insert a new schedule 4 into the bill were also agreed to. Schedule 4 clarifies that a judge of the Federal Court of Australia other than the Chief Justice may hold a concurrent appointment as a judge of one or more state supreme courts. The amendments to schedule 2 of the bill implement a recommendation from the recent report on the bill by the Senate Standing Committee on Legal and Constitutional Affairs.

Recommendation 2 of the Senate report recommended that proposed paragraph 24(1AA)(c) be deleted from schedule 2 of the bill so that interlocutory decisions relating to security for payment of costs by a single Federal Court judge can continue to be appealed to the full Federal Court, introducing a level of accountability.

In submissions to the Senate committee, the Law Council of Australia and the Australian Network of Environmental Defender’s Offices strongly supported retaining the right to appeal for security of costs decisions. This is based on the view that the removal of this right of appeal could effectively stifle litigation, as parties would be taking a large financial risk irrespective of the merits of the case. Security of costs enables parties to determine whether there will be some capacity to recover costs if they decide to proceed with or defend litigation. The government accepts the view in the Senate committee report that removing the right to appeal interlocutory decisions relating to security of payment of costs by a single court judge could have the unintended consequence of limiting access to justice for some litigants.

I note for the House that the requirement to seek leave to appeal these decisions under section 24(1)(a) of the Federal Court of Australia Act enables the Federal Court to manage any potential delays caused by appeals against such interlocutory decisions relating to security for the payment of costs by a single Federal Court judge. Although not specifically referred to by the Senate committee or the Law Council of Australia, the government also proposes that for consistency similar paragraphs 33(4A)(c) and 33(4B)(d) also be deleted. These paragraphs provide for no avenue of appeal to the High Court for decisions relating to security of costs when made by a full court exercising original jurisdiction or when made by a single judge or a full court in the appellate jurisdiction. respectively. The deletion of these paragraphs will continue current arrangements and ensure that security for costs orders will continue to be appellable.

New schedule 4 to the bill clarifies that a judge of the Federal Court of Australia other than the chief justice may hold a concurrent appointment as a judge of one or more state supreme courts. The amendment is not controversial or complex. It will involve amending section 6 of the Federal Court of Australia Act to include ‘the Supreme Court of a state’ within the definition of ‘prescribed court’.

In March 2008, the Standing Committee of Attorneys-General first agreed to the development of an exchange program between judicial officers of interested jurisdictions. The Federal Court act does not currently preclude the appointment of Federal Court judges to state courts. The amendment will encourage existing arrangements for the temporary transfers of Federal Court judges to state supreme courts. The government expects that the transfer of the Federal Court judges to hear matters in superior state courts will enhance the knowledge and experience of Federal Court judges, benefit other jurisdictions with new ideas and improvements to their courts, and result in a more consistent body of national decision-making in areas of common jurisdiction. (Extension of time granted) The government expects that the transfer of Federal Court judges to hear matters in superior courts, as I have indicated, will assist in the development of greater national uniformity. The amendment demonstrates the Rudd government’s commitment to working with the states and territories in pursuing court excellence on a national basis.

Question agreed to.

I present a supplementary explanatory memorandum to the bill and I move:

That Senate amendment (6) be disagreed to and that government amendment (1) be made in place of it:

(1)    Page 22 (after line 23), at the end of the Bill (after proposed Schedule 4), add:

Schedule 5—Registries

Federal Court of Australia Act 1976

1  At the end of section 34

Add:

        (3)    The Registrar must ensure that at least one Registry in each State is staffed appropriately to discharge the functions of a District Registry, with the staff to include a District Registrar in that State.

The government does not accept the amendment which was introduced by the Greens and supported by the coalition in the Senate. That amendment did result in some delay to the bill. I recognise that the Federal Court’s decision to transfer the responsibilities of the Tasmanian district registrar to the district registrar for Victoria was an important issue and an issue that concerned the people of Tasmania—and it had vigorous advocacy by members of the Tasmanian legal profession. However, the government cannot support the proposed amendment and is instead moving an alternative amendment in order to facilitate the passage of the bill.

The Courts and Tribunals Administration Amendment Act 1989 granted self-administration to the Federal Court, the Family Court and the Administrative Appeals Tribunal. In the second reading of the bill, the then Attorney-General, the Hon. Lionel Bowen, explained that the bill would give the courts responsibility for the supervision of their own financial management and practices, and control over the management of their administrative affairs. The then Attorney-General went on to explain that self-management would ensure the courts are free to make their own decisions and maximise their flexibility to cope with the changing pressures and priority throughout each year. However, he noted that the courts and tribunals, no less than other areas of public administration, must be accountable for efficiency in the management of their affairs. It is now, rightly, accepted that responsibility for the administration and management of the federal courts properly lies with the courts themselves.

The amendment moved in the Senate by the Greens and supported by the coalition, the government believed, inappropriately restricted or would restrict if enacted the Federal Court’s capacity to independently and efficiently manage its own affairs. It would have compelled the retention of a specific full-time position in each and every state registry without regard to actual needs, which might vary between registries over time. All areas of government are being asked to find efficiencies, and I have encouraged and will continue to encourage the federal courts, given their importance as an independent arm of government, to increase efficiency while maintaining service delivery.

Additionally, a significant unintended consequence would be caused by the use of the term ‘full time’. Those opposite should be mindful that the requirement to work full-time may exclude some applicants with families or other carer responsibilities and may also exclude some applicants with a disability. The government believes this is out of step with the government’s commitment to social inclusion and the policies which underpin federal antidiscrimination laws, such as the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992. On those bases the government opposes the amendment in its current form.

I have sought assurances from the Chief Justice of the Federal Court that the standard of legal services offered by the court in Tasmania will not be reduced. From the outset, Chief Justice Black has assured me that the Federal Court’s review of the best structures for its Tasmanian registry will not reduce the quality of legal services provided in Tasmania. Indeed, in his letter tabled in the Senate on 7 September 2009, the chief justice assured senators that all judge delegated work and mediations associated with matters filed in the Tasmanian district registry will continue to take place in Tasmania, and we believe that is an important assurance. It means that litigants or lawyers will not be required to travel outside Tasmania to conduct their Federal Court matters. Put simply, the government accepts the court’s assurance that it is committed to ensuring that all matters filed within the Tasmanian district registry will continue to be dealt with promptly, effectively and to the highest standard.

As the bill forms a key part of the Rudd government’s agenda to improve access to justice, I am keen to ensure that the bill can pass as soon as possible. Therefore, in order to facilitate the passage of the bill, I have moved an alternative amendment to section 34 of the Federal Court Act which provides, as indicated:

The Registrar must ensure that at least one Registry in each State is staffed appropriately to discharge the functions of a District Registry, with the staff to include a District Registrar in that State.

It ensures that each state will have an appropriately staffed federal registry while maintaining the flexibility of the court to manage its affairs.

Question agreed to.