Hon Judi Moylan

Courts and Tribunals Legislation Amendment (Administration) Bill 2012 - Report from Committee

Mrs MOYLAN (Pearce) (12:11): Before discussing the actual findings of the Social Policy and Legal Affairs Committee advisory report into the Courts and Tribunals Legislation Amendment (Administration) Bill 2012, it is worth mentioning the irony that I see in the way that this bill has been referred to committees. I have spoken in the past about the inefficient way in which we are dealing with these bill referrals in this place, where we are referring them to multiple committees for the same outcome. Indeed, I wrote to the former Speaker, the member for Scullin, about this some time ago.

This bill is about achieving efficiency, and it seems ironic to me that we cannot achieve those efficiencies ourselves in the way in which we manage the business of this chamber. It is not only my concern about the lack of efficiency in the management of bill referrals to committees, but also about what I sometimes see as the incredibly short time that committees have to report which does not allow them to do the job justice and to properly consider the implication of some of these bills which have incredible ramifications for the agencies involved in the changes and, indeed, for the Australian public.

This bill was concurrently referred to the Senate Standing Committee on Legal and Constitutional Affairs. It was referred to the Social Policy and Legal Affairs Committee, and aspects of it have also been examined by the Parliamentary Joint Committee on Human Rights in regard to access to justice. Again, I make the comment that it would be good to see us perhaps streamline the work of this parliament and to make sure that we are not overlapping on the proper scrutiny of bills. Then we can begin to look at how we streamline and make our different agencies in government more effective. But I do thank the Social Policy and Legal Affairs Committee secretariat and my colleagues for the rational approach that they have taken to scrutinising this particular bill by drawing principally from evidence given to the Senate standing committee in the preparation of this report so that there was not duplication of work.

The bill has two principle aims. The first is to legislatively formalise the merger of the administration functions of the Family Court and the Federal Magistrates Court, which occurred in 2008-09. The second is to merge the appropriations, staff and some administrative functions of the National Native Title Tribunal, or the NNTT, with the Federal Court. In total, the bill intends to achieve $4.75 million in savings each year over the next four years. In merging the administration functions of the Family Court and the Federal Magistrates Court, which is now called the Federal Circuit Court, a relatively meagre one-off amount of $6.3 million was returned to the government and 50 staff were shed through voluntary redundancies and attrition. In terms of ongoing savings, the chief executive officer of the Family Court, who has also been acting as chief executive officer of the Federal Magistrates Court since November 2008, stated that no further savings could come from the merger, except for $500,000 a year in reduced compliance costs when this bill is passed. Notably, the Attorney General's Department agreed with this assessment. But even that saving could quickly evaporate. The chief executive officer of the Federal Magistrates Court has a total remuneration package of upwards of $300,000 a year, meaning that if or when such a person is appointed, ongoing savings from this measure will be less than $200,000 a year—not even enough to employ another judge to lighten the continually increasing workload of the courts.

Whilst the committee heard evidence that the temporary combined role of chief executive officer of both courts is currently working, this may not persist into the future. As the government's Future governance options for federal family law courts in Australia report, the Semple report, notes on page 6: 'The 'service culture' of the Federal Magistrates Court is, by design, different from that of the Family Court. While the FMC's service culture has certainly been received positively by litigants and legal practitioners, it has also created significant friction and resentment between the two courts in relation to resource allocation and, in particular, judicial support resources … and … tension over resources has distracted the Family Court and FMC from their core responsibilities.' In terms of savings, the Attorney General's Department confirmed to the committee that the recurring $4.75 million intended to be saved under the bill will come from the second aim of the bill, namely the transfer of the National Native Title Tribunal staff, appropriations and administrative functions. The 2012 Strategic Review of Small and Medium Agencies in the Attorney-General's portfolio—the Skehill Review—reveals that $2 million of that will come from the Federal Court taking over responsibility for mediation from the NNTT. As the Skehill review outlines on page 75, that is because mediation in the NNTT is primarily conducted by tribunal members with a total remuneration package of $280,000 a year, whereas mediation in the Federal Court is undertaken by officers at the legal 2 or SES band 1 level, with total remuneration ranging between $160,000 and $220,000 per annum. Additionally, the level of support provided to Federal Court officers to conduct mediation is less than the support generally provided in the NNTT to members.

Understandably, with less support staff available to the Federal Court mediators, this has caused concern about the potential for delay in native title decisions, which can already take up to more than 10 years, as well as the loss of experienced staff from the NNTT, who have built up years of cultural awareness and sensitivity, which is crucial in hearing and mediating native title claims.

Whilst the committee sought to confirm that there would be a transition of staff and expertise, it is concerning that the Skehill review points out that the $2 million in savings it identified will be realised with 'rationalisation' of staff—or, more correctly, the loss of staff. Considering, too, the significant disparity in pay between the NNTT members and officers of the Federal Court, there is not likely to be a transition of NNTT members, with their collective knowledge and expertise, to the Federal Court.

Due to the relatively constrained inquiry by the Social Policy and Legal Affairs Committee these issues have not been canvassed in depth. But hopefully the more detailed Senate committee inquiry will investigate these aspects more thoroughly and the House will then be more equipped to determine the likely ongoing effects that this bill may have.

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