George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Can I say at once that the opposition supports this bill. I will turn to the terms of the bill in a moment, but I thought I might, with the indulgence of honourable senators, take the opportunity in speaking to this bill to make a few remarks about the judicial appointments announced on Tuesday by the Attorney-General, Nicola Roxon—they being the appointment of the Hon. Patrick Keane, who had lately been the Chief Justice of the Federal Court, as the 50th Justice of the High Court, and of the Hon. James Allsop to be the new Chief Justice of the Federal Court. As I said in a television interview, but let me say it in the chamber and get it on to the parliamentary record, the opposition congratulates both Justice Keane and Chief Justice Allsop on their appointments and warmly welcomes both of them.

I have had a number of fairly harsh things to say about the Attorney-General in the last few months and I do not resile from them one iota. But to give credit where it is due I am bound to say that, in her senior judicial appointments, so far the Attorney has not put a foot wrong: in the appointment of Justice Gageler to the High Court a few months ago and now the appointments of Justice Keane to the High Court and Justice Allsop as the Chief Justice of the Federal Court. In fact, let me record for posterity, as it were, that early this year the Attorney-General did me, as the shadow Attorney-General, the courtesy of writing to me as part of a quite extensive consultation process which she undertook. She invited my suggestions as to the names of suitable people for appointment to the High Court. In a letter I wrote to the Attorney-General on 21 April this year, having myself consulted among a reasonably wide cross-section of senior lawyers and judges in Australia, I proposed six names. I will not say who those six were, but I am delighted to say that the names of Justice Gageler, Justice Keane and Justice Allsop were all among them. I am pleased that the Attorney-General and I have been able to see eye to eye on this matter, because all of the senior judicial appointments that the Attorney-General has made in the last few months were from among the six names recommended to her by the opposition.

I do not know Chief Justice Allsop personally. To the best of my recollection I have never met him, but I do know him by reputation to be a particularly distinguished lawyer. I am told that his expertise is in particular in the field of maritime law, which is a very interesting and arcane area of the law. I know that he is a former associate to the Hon. Sir Nigel Bowen, the first Chief Justice of the Federal Court of Australia and a very illustrious Liberal Attorney-General and member of the House of Representatives.

I do know Pat Keane well, having been his colleague at the Queensland bar for many years and having been his junior on several occasions. Pat Keane has had a stellar reputation. He was a university medallist from the University of Queensland. He took the Bachelor of Civil Law degree and won the Vinerian prize, which is awarded to the best graduate in that particularly challenging law course, in his year. He is the only Queenslander, to the best of my knowledge, to have won the Vinerian prize which, in many ways, is the Olympic gold medal of legal scholarship, certainly in the English-speaking world. He had a very successful practice at the Queensland bar. He took silk after only 10 years. He was the state Solicitor-General for something like 15 years, having been appointed by a Labor government and reappointed by the Borbidge coalition government. He has lately been a member of the Queensland Court of Appeal and was then the Chief Justice of the Federal Court. Pat Keane has had an absolutely stellar scholarly and professional career. I am pleased to say that he is a Magdalen man. I do not say that all High Court judges should be BCL graduates from Magdalen College, Oxford, but it does not do any harm.

Having offered those felicitations to Chief Justice Allsop and Justice Keane, let me turn to the content of this bill. This bill is a bill to amend the Administrative Appeals Tribunal Act 1975, the Family Law Act 1975, the Federal Court of Australia Act 1976, the Federal Magistrates Act 1999 and the Judiciary Act 1903 to implement provisions of SCAG model bills relating to procedural and jurisdictional matters pertaining to the federal courts and the Administrative Appeals Tribunal. The amendments proposed by the bill aim to improve the function and efficiency of the discovery rules in civil proceedings, specifically to provide for more flexibility in cost orders and to allow for pre-trial oral examination to implement the SCAG model bill on suppression and non-publication orders, to implement the SCAG model bill concerning vexatious proceedings, and to align the jurisdictional limit of family law magistrates in Western Australia with the Federal Magistrates Court. That is in turn being overtaken by the bill considered earlier in the week which changes the Federal Magistrates Court to the Circuit Court of Australia. The amendments also aim to provide more flexibility to the Administrative Appeals Tribunal when dealing with the payment of fees.

The amendments proposed by this bill are relatively procedural and non-controversial. As I have indicated, they arise from detailed consideration by the Standing Committee of Attorneys-General. I interpolate to say that I suspect they in fact arise from detailed consideration by officials reporting to the Standing Committee of Attorneys-General. The highest profile issue is that of suppression and non-publication orders, which vary considerably across Australian jurisdictions. Moves to harmonise the rules in favour of open justice should generally be supported.

The bill was referred to the Senate Legal and Constitutional Affairs Committee, which reported on 22 March and unanimously recommended that the bill be passed. I want to say a couple of things about the evidence given to the committee. The suppression and non-publication orders in schedule 2 of the bill are modelled on the Court Suppression and Non-publication Orders Act 2010 of New South Wales, which is the template for other jurisdictions to follow. The vexatious proceedings provisions in schedule 3 of the bill reflect the legislation that has been implemented in Queensland, New South Wales and the Northern Territory as a result of the SCAG process.

The use of suppression and non-publication orders by Australian courts has been a matter of considerable controversy in recent years. Under the regime proposed by the bill, a suppression order is defined as 'an order that prohibits or restricts the disclosure of information by publication or otherwise' and a non-publication order is an order that prohibits or restricts the publication of information but does not otherwise prohibit or restrict the disclosure of information. The grounds for making an order will be that the order is necessary to prevent prejudice to the proper administration of justice; to prevent prejudice to the interests of the Commonwealth, a state or territory in relation to national or international security; and to protect the safety of any person and avoid any undue distress or embarrassment to a party or witness in criminal proceedings involving sexual offences, which is the new 102PF. The amendments provide that persons who may appear and be heard on an application are the applicant, a party, an Australian government, a news publisher or any other person who in the court's opinion has sufficient interest in the matter. The contravention of an order is an offence with a penalty of 12 months imprisonment, 60 penalty units or both. In deciding whether or not to make an order the court is obliged to take into account that a primary objective of the administration of justice is to safeguard open justice, namely public hearings. That is not an absolute value; there are circumstances, as you know, Madam Acting Deputy President, in which it is appropriate for courts to take evidence in camera, but those circumstances are rare indeed and ought to be recognised as narrowly circumscribed exceptions to a strongly defended general rule.

Australia's Right to Know, representing the media, submitted to the committee that there were too many and unjustified orders being made, noting an increase in such orders since the passing of the New South Wales act. In its response the Attorney-General's Department could not comment on the reasons for such increases but submitted that it did not anticipate an increase in such orders in the federal courts as a result of the bill's provisions.

Turning to the vexatious proceedings amendments, vexatious proceedings are defined to include proceedings that are an abuse of the process of a court or tribunal; proceedings instituted to harass or annoy, to cause delay or detriment or for another wrongful purpose; proceedings instituted or pursued without reasonable grounds; and proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment or achieve another wrongful purpose. As the definition uses the word 'include', these points should be read disjunctively, namely all or any one of them may apply to a particular case. As the explanatory memorandum states, the definition of vexatious proceedings is an inclusive definition which lists some examples of various kinds of proceedings which could give rise to a vexatious proceedings order. Let me pause to say that litigants with a valid claim are perfectly free to seek vindication by going to the law. For that reason vexatious proceedings orders that seek to restrain proceedings which are otherwise properly made out and properly pleaded are orders that should never be made. They should only be made in circumstances where there is genuinely an abuse of the court's process so that the court is being put upon as a vehicle to traduce another citizen.

Concerns were raised in submissions to the committee about the proposed provisions limiting the ability of the Family Court of Australia to make such orders because of the expression 'proceedings under this act'. The Family Court has some original jurisdiction outside the Family Law Act. The Attorney-General's Department submitted that the intent of the wording is to prevent family law vexatious litigants from making vexatious proceedings under the Family Law Act in multiple courts, for example in the Federal Magistrates Court or the Family Court of Western Australia, rather than limit the Family Court's powers to make such orders. The family law jurisdiction is of course a very difficult jurisdiction in which essentially there are no winners. It deals with people in circumstances which are inherently distressing and as well as the parties before it it deals with children in distressing circumstances through no fault of their own. In that sense, family law proceedings are always vexed proceedings, but that does not make them vexatious proceedings. The term 'vexatious' has a technical meaning in the law which is much more specific and confined than the meaning in ordinary speech.

As I said at the start, the coalition is pleased to support the bill. My only cavil, one I have raised before in this place, is with the misleading nature of the short title of the bill. The government talks a big game when it comes to access to justice. However, its record on access to justice is in fact lamentable. Over the past five years, the Rudd and Gillard governments have increased court fees, starved the courts of resources, sought to abolish and then abandoned the attempt to abolish the Federal Magistrates Court, the most efficient and lowest cost federal court, and sought to introduce new levels of complexity and cost into family law. As I said earlier this year, the Gillard government's attitude to accessible justice is to charge more and provide less.

Not only does this make a mockery of the government's self-serving rhetoric; it reflects a more disturbing approach that reflects a fundamental disrespect for the separation of powers. The courts are not an agency of the executive government. They should not be treated as such. They are a separate institution of government, and they must be sufficiently resourced to perform their constitutional functions and preserve their constitutional integrity.

The amendments made by this bill are welcome. Measures to harmonise the law, provide flexibility in pre-trial procedures and increase transparency are worthwhile aims. However, to describe these amendments explicitly as 'access to justice measures' is pure spin, which risks devaluing the concept and calls into question the government's understanding of the problem. Best to be less heroic and more modest in our entitling of legislation and accept that this bill is a bill about technical aspects of court procedure. I commend the bill to the Senate.

Don Farrell (SA, Australian Labor Party, Parliamentary Secretary for Sustainability and Urban Water) Share this | Link to this | Hansard source

Thank you for that contribution, Senator Brandis. I commend the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 to the Senate.

Question agreed to.

Bill read a second time.