Senate debates

Monday, 19 November 2012


Federal Circuit Court of Australia Legislation Amendment Bill 2012; Second Reading

8:45 pm

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

Let me say it once: the opposition supports the Federal Circuit Court of Australia Legislation Amendment Bill 2012. I say that with great pleasure, for two reasons. First of all, and I do not want to be too political about a bill that we support, the history of this bill and of this issue is a masterclass in the policy confusion which has characterised the governments of former Prime Minister Kevin Rudd and Prime Minister Julia Gillard. That is because this bill is a comprehensive, complete and total policy somersault from a position that was maintained by the former Attorney-General and the former Prime Minister, and maintained into the life of the current Prime Minister, into the very opposite position to that which they initially maintained.

The second, and related, reason it is a great pleasure to support this bill is that it enacts a set of arrangements for the federal judiciary, which the respected legal journalist Chris Merritt flatteringly once described as 'the Brandis model'.

Senator Bob Carr interjecting—

I was quotingsomebody else, Senator Carr; I am very abashed. Let me relate to the Senate the history of this legislation. Early in the life of the Rudd government a report was commissioned into the operation of the family law system, written by a consultant called Mr Des Semple. The Semple report was published on 20 November 2008. The principal recommendation of the Semple report was that the Federal Magistrates Court—a court which is the workhorse of the federal judiciary, and before which most federal litigation is conducted—should be abolished and collapsed into the Family Court of Australia, and that those federal magistrates who were not concerned with doing family law work should become special masters of the Federal Court of Australia.

For a very long while the Labor Party had a prejudice against the Federal Magistrates Court, something that its members have not been slow to realise. Perhaps it is because this extremely effective and useful court was the brainchild of a former Attorney-General, the Hon. Philip Ruddock, and was created during the time of the Howard government.

When the Semple report was published I, on behalf of the opposition, warned that the elimination of the Federal Magistrates Court would be a very grave mistake, but the former Attorney-General the Hon. Robert McClelland maintained stubbornly that the Federal Magistrates Court should go, and that its family law jurisdiction, which was the lion's share of its jurisdiction, should be absorbed by the Family Court of Australia and the balance of its jurisdiction should be absorbed by creating a new class of special masters of the Federal Court—something that the Federal Court did not want, by the way. I warned, in a speech I gave in the Senate on 13 May 2009, that this would be was a mistake. I was roundly criticised by the government for the position the opposition took in seeking to preserve a lower-tier jurisdiction to deal with most of the smaller matters that the federal judiciary has to deal with.

Then came the decision of the High Court in Lane and Morrison, which struck down the then-existing military justice system. Again, I pointed out to the government that the best way to deal with this matter would be to have a military justice division of the Federal Court of Australia and the Federal Magistrates Court, but that this would require the Federal Magistrates Court to be retained. Eventually, on 24 May 2010, the government changed its position. It conceded that the coalition's point that the Federal Magistrates Court should not be dismantled was right, but it accepted the coalition's position only in part; it continued to envisage a significantly inferior role for the Federal Magistrates Court into the future.

At the 2010 election, on 13 August, Mr McClelland and I as, respectively, the Attorney-General and the shadow Attorney-General had our own debate. It was not one of those glamorous, high-profile leaders debates that the political leaders have, but it was a portfolio debate. It was hosted by Gilbert + Tobin Lawyers in their Sydney offices and covered extensively by the Australian Financial Review. In the course of that discussion I announced the coalition's policy, which was not merely to retain the Federal Magistrates Court and treat it with the respect that it deserves but in fact to elevate its status more accurately so as to reflect the character of the work it did—by reconstituting it the 'Federal Circuit Court of Australia' and changing the designation and status of its members from magistrates to judges, so that they would effectively be a parallel jurisdiction to the state district courts or county courts.

That was the policy that the coalition took to the 2010 election. It is a policy that comes to fruition this evening in this bill, which is precisely and in every respect the policy that the coalition urged upon the government in the previous parliament.

I think it is reasonably well known that I have a bit of time for Mr Robert McClelland. I do not think he deserved to be dismissed as the Attorney-General as a part of the Prime Minister's payback in the internal Labor Party wars. But, nevertheless, notwithstanding my high personal regard for Mr Robert McClelland, he certainly did not get it right all the time when he was Attorney-General and he certainly made a mess of this matter.

The day after I announced the coalition's policy to preserve the Federal Magistrates Court and elevate its status, by establishing it as the Federal Circuit Court of Australia, Mr McClelland issued a press release, on 17 August 2010. In fact, it was four days after our debate. Beside a photograph of Mr McClelland, there is the headline 'Brandis demonstrates the coalition can't be trusted'. In his press release, Mr McClelland sets out all of the reasons why, in the view of the Gillard government, of which he was at that stage still a member, the coalition's proposal to retain the Federal Magistrates Court and elevate its status by constituting it as the Federal Circuit Court of Australia was a thoroughly bad and financially irresponsible idea. Yet that is the very idea, the very thing, that the government is legislating for tonight.

So the coalition welcome the late conversion of the government to abandoning its foolish proposal to do away with a tier of the federal judiciary first created during the time of the Howard government. We welcome the decision of the government to adopt lock, stock and barrel the opposition's policy by reconstituting it as the Federal Circuit Court of Australia. But we shake our head in bewilderment as to why it has taken almost five years, from the time the Semple report was first commissioned, in early 2008, to November 2012, for the government to get this right and to adopt lock, stock and barrel the opposition proposal. They denounced it for almost five years.

I am pleased to say that, after Mr McClelland's dismissal from the office, the new Attorney-General, Ms Roxon, at last saw the error of the government's ways. On 29 May this year, she announced the adoption by the government of the opposition's position—that is, the retention of the lower tier level of the federal judiciary, unaffected by the various foolish proposals outlined in the Semple report, and its reconstitution as the Federal Circuit Court of Australia. After all of this trouble, all of this confusion, all of this uncertainty, with its devastating effect on the morale of the members of the court, who simply did not know where their future lay—many of them confided in me in the years that went by during which we had this dispute—eventually the government got it right.

But do you know, Mr Acting Deputy President, what is the really sad thing about the sorry history of this issue? The government's initial proposal to abolish the Federal Magistrates Court was said to be a cost-saving measure. Do you know how much Mr Semple estimated would be saved by abolishing the Federal Court of Australia and incorporating its functions into the Family Court and the Federal Court? Two million dollars a year. How many tens of millions, perhaps hundreds of millions, of dollars—in the costs to litigants of the delay, in money unnecessarily spent on lawyers, and in the systemic costs within the court system—have been incurred in the 4½ years since, as a result of this very foolish false economy? Had the government not eventually seen the wisdom of the opposition's position, it would have been the first time in our history that an entire tier of the federal judiciary had been abolished for no significant financial benefit but at enormous cost in terms of legal expenses and delays to both family law litigants and other litigants who appear before that court—which, as I have already said in my speech and which I want to emphasise, has been the workhorse of the federal judiciary.

Let me conclude by saying, as I said at the start, that we in the opposition give credit where it is due. The process has been appalling and the decision making has been, until the last step, wrong-footed and erroneous. But after all of this delay and confusion, with the devastating impact on the morale of the 50 or so judicial officers who comprise the court, the government has at last got it right by adopting an opposition policy that it has been more than four years coming to the party to understand the wisdom of.


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