House of Representatives

Federal Magistrates (Consequential Amendments) Bill 1999

Second Reading Speech

Senator IAN CAMPBELL (Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts)

I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows-

FEDERAL MAGISTRATES BILL 1999

It is with great pleasure that I present the Federal Magistrates Bill 1999. The Bill will establish the Federal Magistrates Court, also to be known as the Federal Magistrates Service, as a court under Chapter III of the Constitution. The Government is committed to providing all Australians with user-friendly, affordable options for resolving their disputes. The Federal Magistrates Service is an important step towards realising that goal. As members would be aware, the High Court of Australia was established by the Constitution in 1901. Since then, the Federal Parliament has established a number of superior courts, including the Family Court and the Federal Court, but it has never created a lower level court.

While the Commonwealth judicial structure has served Australia well, the changes that have occurred in Australian society over recent years have lead to an increased range of matters coming before the Commonwealth courts. Many of these matters are not complex and do not need to be dealt with by superior court judges. Federal and Family Court judges are increasingly tied up dealing with matters that could be dealt with more efficiently at a lower level. The need for a court which can handle less complex federal matters more efficiently and effectively is now pressing. It is appropriate that, on the cusp of the new millennium, this Parliament takes the next step of establishing a new, lower level, Commonwealth court.

The Federal Magistrates Service will comprise federal magistrates, who will be justices as required under the Constitution. The Federal Magistrates will be selected for their expertise in federal matters, including family law, and will deal with a range of matters of a less complex nature that are currently dealt with by the Federal and Family Courts. The Federal Magistrates Service is intended to provide a quicker, cheaper option for litigants and to ease the workload of both the Federal Court and the Family Court. When fully established, it will free up the Federal and Family Courts to focus on the more complex matters that require the attention of a superior court judge.

The Government proposes that the federal magistrates develop a new culture, with an emphasis on user-friendly, streamlined procedures. This will be especially important for litigants who do not have legal representation. The Federal Magistrates Service will be as informal as possible, while remaining consistent with the discharge of judicial functions. This change of culture could not be achieved by appointing more judges to the existing courts. Nor would simply appointing more judges solve the problem of the waste of judicial resources which occurs as a result of superior court judges dealing with less complex maters that could be dealt with efficiently at a lower level.

The appointment of more registrars to hear more lower level matters in the Family and Federal Courts has been suggested as a solution to the delays in the courts, and has been adopted as a stop-gap measure in the Family Court. However there are significant limits on the matters which such officers of the courts can handle without running into constitutional problems. In addition, any review of a registrar's decision must involve a full re-hearing of the case before a judge. This significantly adds to the costs for parties and does not promote an efficient use of the court's time. Unlike registrars, federal magistrates will be able to make final decision in all matters within their jurisdiction and appeals against their decisions will not require a full rehearing but rather will focus on questions of law.

The Government is keen to ensure that the procedures of the new Federal Magistrates Service are as streamlined and informal as practicable. Obviously, it will be up to the Federal Magistrates Service itself to make its own Rules, which will largely determine issues of practice and procedure. However, the legislation will include provisions designed to assist the Federal Magistrates Service to develop procedures that are as simple and efficient as possible. Under the provisions of this Bill:

·
the Court will have the power to set time limits for witnesses and to limit the length of both written and oral submissions;
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discovery and interrogatories will be permitted only if the Court considers that they are appropriate in the interests of the administration of justice;
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the Court can make a decision without an oral hearing with the consent of the parties;
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there will be more emphasis on delivering decisions orally in appropriate cases, rather than parties having to wait for reserved judgments; and
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there will be a power to make Rules to allow federal magistrates to give reasons in a shortened form in appropriate cases.

The Government wishes the Federal Magistrates Service to have the flexibility to tailor its practice and procedures to the particular circumstances before it.

Some Federal Magistrates will be permanently located in regional areas. In addition, Federal Magistrates will be able to travel to hear cases in centres other than those in which Federal Magistrates are permanently based, and will have the ability to sit anywhere in Australia. This need not necessarily be in a formal court room. The Federal Magistrates Service will be able to use video and audio conferencing facilities for remote witnesses and parties, and will be able to adapt its procedures to suit the parties and the individual case.

There are often cases where parties live in different towns or even different States. Use of video links will alleviate the problem of parties having to travel long distances to attend directions hearings or final hearings of their cases. This will save individuals significant time and money.

The Government is concerned that Australians from all walks of life should be able to access the court system when their circumstances require it. Measures such as these should help to facilitate this, particularly for those in regional Australia.

In addition to providing greater access to the court for regional Australians, the Federal Magistrates Service will complement the Government's initiatives aimed at encouraging people to resolve disputes through primary dispute resolution, rather than through litigation.

The Federal Magistrates Service will able to call on a range of means to resolve disputes. There will be no automatic assumption that every matter will end in a contested hearing, and the use of conciliation, counselling and mediation will be strongly encouraged in appropriate cases. Parties will be encouraged to take responsibility for resolving their dispute themselves, where this is practical. This approach is more likely to result in a more endur ing resolution of a dispute because the parties are more likely to accept agreed outcomes.

The Federal Magistrates Service will be able to use community-based counselling and mediation services as well as the existing counselling and mediation services of the Family Court, providing as wide as possible a choice for clients of the Court.

Information about a range of dispute resolution options will be available from the Federal Magistrates Service. Parties to a dispute will be able to obtain information about or referral to primary dispute resolution services even before filing an application with the Federal Magistrates Service. It is hoped that this will enable parties to avoid avoiding the need for the court to resolve the dispute. The federal magistrates will also encourage parties who have filed applications to attempt to resolve their dispute using appropriate dispute resolution processes.

The National Alternative Dispute Resolution Advisory Committee has provided advice on use of alternative dispute resolution in the Federal Magistrates Service. Its recommendations have been taken into account in the drafting of the legislation and will be very helpful in assisting the Federal Magistrates Service to develop procedures to make optimum use of primary dispute resolution.

As I have said, the Government is concerned to ensure that all Australians have appropriate access to the court system. As well as the measures I have already mentioned, such as video links, the Federal Magistrates Service will improve access through its:

·
user-friendly procedures and less formal judicial culture; and
·
lower fees.

These measures should help to reduce legal costs and expenses and result in litigants saving both time and money.

As I have already indicated, the Federal Magistrates Service is intended to help ease the existing workload of the Family Court and Federal Court. It is not intended to take away federal work currently performed by State and Territory courts.

The Federal Magistrates (Consequential Amendments) Bill 1999 will give the Federal Magistrates Service its jurisdiction. The jurisdiction will be concurrent with that of the Family Court and the Federal Court-there will not be any jurisdiction which is solely that of the Federal Magistrates Service. Where more complex matters are filed in the Federal Magistrates Service, there will be provisions for enabling them to be transferred to the Federal Court or the Family Court (whichever has jurisdiction). Similarly, there will be provisions for transfer from the superior courts to the Federal Magistrates Service of less complex matters within the jurisdiction of the Federal Magistrates Service.

It is intended that the Federal Magistrates Service will use the infrastructure of the existing courts to the extent practical in order to minimise costs. This may include accommodation, court rooms, some administrative staff, video conferencing equipment, library and other facilities. It is also planned that the Federal Magistrates Service will use the registry services of Family and Federal Courts whenever practical. This will ensure the most efficient use of resources.

The registrars of the existing courts are also likely to be used by the Federal Magistrates Service to perform similar functions to those they presently carry out for the Federal Court and the Family Court.

The establishment of the Federal Magistrates Service is an exciting new development, which will provide a cost effective means of helping to ease current delays and enable more effective use of expensive judicial resources. It will provide a more user-friendly option for parties to less complex matters and should also allow the Federal Court and the Family Court to concentrate on more complex cases.

It is intended that the Federal Magistrates Service place an emphasis on assisting parties to take responsibility for resolving their own disputes, when this is practicable, using alternative dispute resolution methods such as conciliation, mediation and counselling. Where this is not possible, the Federal Magistrates Service should be able to deal with matters before it with a less formal and more streamlined manner, to ensure that matters are dealt with as expeditiously and cheaply as possible.

The Government is keen to ensure that ordinary Australians are provided with suitable access the justice system according to their needs and within their means. The establishment of the new Federal Magistrates Service is an important step towards achieving that goal.

FEDERAL MAGISTRATES (CONSEQUENTIAL AMENDMENTS) BILL 1999

This Bill is part of a package with the Federal Magistrates Bill 1999, which will establish the Federal Magistrates Court, also to be known as the Federal Magistrates Service. The Federal Magistrates (Consequential Amendments) Bill provides the Federal Magistrates Service with its jurisdiction and makes other minor consequential amendments to a number of Acts.

As the lower level of Commonwealth court, the Federal Magistrates Service will take on a range of less complex matters which are currently heard by the Federal and Family Courts. It is not intended that the Federal Magistrates Service will take away federal work currently performed by State and Territory courts.

Its jurisdiction will be concurrent with that of the Family Court and the Federal Court-there will not be any jurisdiction which is solely that of the Federal Magistrates Service. Where more complex matters are filed in the Federal Magistrates Service, there will be provisions for enabling them to be transferred to the Federal or Family Court (whichever has jurisdiction). Similarly, there will be provisions for transfer from the superior courts to the Federal Magistrates Service of less complex matters within the Federal Magistrates Service's jurisdiction.

Looking first at jurisdiction in matters currently dealt with by the Federal Court, the Federal Magistrates Service will have jurisdiction to hear:

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applications under the Administrative Decisions (Judicial Review) Act 1977;
·
appeals from the Administrative Appeals Tribunal which are transferred by the Federal Court to the Federal Magistrates Service;
·
matters arising under the Bankruptcy Act 1966;
·
applications under the Human Rights and Equal Opportunity Commission Act 1986, if and when the Human Rights Amendment Bill (No 1) 1998 is enacted;
·
matters arising under Divisions 1 and 1A of Part V of the Trade Practices Act 1974, being the consumer protection provisions; and
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matters under s127 and Part XA of the Workplace Relations Act 1996;

The main areas of family law in which the Federal Magistrates Service will have jurisdiction are:

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applications for dissolution of marriage;
·
family law property disputes where the property in dispute is worth less than $300,000, or where the property in dispute is worth more than this where all parties consent to the matter being heard by a federal magistrate;
·
parenting orders providing for the residence of a child, again, where the parties consent to a federal magistrate hearing the matter; and
·
parenting orders providing for other matters such as contact, maintenance and specific issues, whether or not the parties consent to a federal magistrate hearing the matter.

The Federal Magistrates Service will also have jurisdiction under the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988.

The establishment of the Federal Magistrates Service will provide a more user-friendly option for parties to the matters within its jurisdiction and will also allow the Federal Court and the Family Court to concentrate on more complex cases.

The establishment of this new lower level Commonwealth court with concurrent jurisdiction with the Federal Court and the Family Court will provide the Australian community with an affordable and accessible option for resolving disputes and will continue the Government's commitment to encouraging people, where possible, to resolve disputes themselves without resort to costly litigation.

Ordered that further consideration of the second reading of these bills be adjourned till the first day of the summer sittings 1999, in accordance with standing order 111.