Rex Patrick (SA, Centre Alliance) Share this | Hansard source

I wish to address some important issues concerning the Senate Legal and Constitutional Affairs Legislation Committee's current inquiry into the provisions of the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018. I will just state up-front that Centre Alliance does not have a position on the proposal to merge the Family Court and the Federal Circuit Court, but I do hold a very strong view that any such reform decision cannot be made without due process being followed and making sure that all possible evidence is brought before the committee and has been collected and considered. This is the reason I sought to ensure that the committee had time to receive submissions and would only hold hearings after submissions were received. Of course, that has delayed the implementation of the reform. However, it must be recognised that the former Attorney-General, Senator Brandis, floated this idea almost three years ago. Had the government wanted it to happen before 2019, it would have been wise to introduce the legislation in the parliament well before it did. I make no apology for slowing the committee inquiry stage down. Indeed, I thank the Senate for its support in assisting this to occur.

That brings me to the next important element of due process, and that is encouraging well-informed submissions and calling for well-informed witnesses to appear before the inquiry hearings. I put it to this chamber that that means we need to encourage submissions from judges and justices and the committee needs to hear from judges and justices. Unfortunately, there seems to be a misguided shyness here in the Senate about calling judicial officers and, indeed, some misunderstanding within the judiciary on what their role is in assisting the Senate. In a move described by some commentators as highly unusual, I recently emailed every Family Court and Federal Circuit Court judge, urging them to make individual submissions to the current Senate inquiry. In that email, I referred to the wisdom of the US Supreme Court in the 1927 case of McGrain v Daugherty, in which the justices of that court said:

A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who possess it.

I stated that few people have more knowledge about the strength and weaknesses of the current federal court structure or the proposed changes before the Senate than, of course, the judges and justices that work inside the system. Whilst it's likely that the Family Court will make corporate submissions and also that the Federal Circuit Court will, I stated that such a submission alone would rob the Senate of the rich and raw input it needs to decide whether the proposed legislation, with or without amendment, would best serve the citizenry.

I have read enough judgments to know that unity of opinion within the judiciary is uncommon. Indeed, former Chief Justice Dixon, regarded by some as Australia's greatest jurist, reputedly said, 'I never agreed in anyone else's judgement without later coming to regret it.' Lord Bingham of Cornhill, considered the greatest British jurist of his generation, contended, 'Judicial independence involves independence from one's colleagues.'

In seeking this diversity of opinion from those who know the system best, the esteemed recipients, I am reminded in my email that the Guide to Judicial Conduct, published under the authority of the Council of the Chief Justices and Australia and New Zealand, states:

It is appropriate for a judge to make a submission or give evidence at such an inquiry—

Being a parliamentary inquiry—

if care is taken to avoid confrontation or the discussion of matters of a political rather than a legal nature, but prior consultation with the head of the jurisdiction is desirable.

It goes on to say:

Again, the expertise or experience of a judge can be of great assistance in the examination of issues relating to legal or procedural matters.

Furthermore it says:

As long as discretion is exercised, this should not detract from the independence of the judiciary from the legislative and executive branches of government.

Whilst my email may have been highly unusual it was most certainly not out of order. Judges and justices can and should make submissions to the inquiry and they should appear before the committee.

I'd like to hear from current judges inside the Federal Circuit Court. I'd like to hear from judges in the original jurisdiction of the Family Court. I'd like to hear from judges in the appeal division of the Family Court. Indeed, I'd like to hear from the Family Court of Western Australian justices that sit and hear family law matters. I'd like to hear from the Federal Court justices that may end up being responsible for appeals from the FCC or from the new division 1 and division 2 courts of the new arrangement. I'd like to hear from judicial officers who serve in small registries. I'd like to hear from judicial officers who hear in large registries and perhaps even some retired justices to add their opinions to the committee.

If we don't hear from these judicial officers the Senate will be cheated and the public will be cheated. I know there is resistance to this idea within the senior echelons of the judiciary, but just as the Senate respects the constitutional independence of the courts in their exercise of judicial power the court should respect and assist the Senate in the exercise of its legislative power. There is no constitutional impediment to judges making submissions or appearing and, as alluded to before, there is no judicial conduct impediments to making submissions or appearing either. The failure of judicial officers to attend will blind the committee and may even jeopardise the reform plans of the government. So, with that in mind, I call on the Attorney-General, and the respective chief justices of the courts that are involved, to encourage judges and justices to assist the Senate in its responsibility of considering this legislation. Thank you.

Senate adjourned 20:43