Chapter 4 General issues
This Bill provides legislative amendments to complete the implementation
of the Skehill Review reforms, and formalises administrative structures that
have developed over the last few years.
In responding to the Committee’s interest in the evaluation of the
ramifications of the initiatives and whether a further review had been
considered, the Federal Court Registrar indicated that a review of the
implementation of the merger of administration after 18 months of
operation would be prudent. However, he also stressed the importance of determining
the scope prior to commencing any review.
When the question of a review was put to the CEO of the Family Court and
Federal Magistrates Court, he advised that a review of the effectiveness of the
legislation could be done any time as the changes are largely embedded. As
mentioned in evidence given by the CEO, the amalgamation has taken place; the
legislation will ‘tidy up some loose ends’. However, he did suggest that there
were some ‘concerns in the court about how the agency was set up’, specifically
in relation to the decision to amend the Family Law Act rather than as a
separate agency under its own Act.
The Australian National Audit Office (ANAO) Audit Work Program July
2011 included a ‘potential audit’ titled ‘Management of the Family Court of
Australia, the Federal Court of Australia and the Federal Magistrates Court’.
However, the ANAO Audit Work Program July 2012 no longer indicates a
possible audit of the courts.
An extensive program of reform has taken place within the courts and
tribunals over the last few years, with changes in structure and amalgamation
of many administrative services, along with ongoing budget constraints. The
Skehill Review provided a thorough analysis of the current state of play, as
well as a range of options for potential improvements. The Bill will allow the
finalisation of aspects of the reform and a number of arrangements that have
been in place for quite some time.
With this in mind, the Committee considers that it may be timely for the
ANAO, as the peak review body for the Australian Public Service, to undertake a
performance audit, similar to that suggested in the ANAO Audit Work Program
While the Committee heard that all parties are working together
effectively and readily negotiating the use of shared resources, it also
acknowledges concerns that a change in circumstance or staff may render less
harmonious outcomes. The Committee is not convinced that there are adequate
safeguards to ensure the continuing independence of each court and the
Certainly one method is the use of sub‑programs, outlined in the
Skehill Review as follows:
… the Portfolio Budget Statements could provide individual
“sub-program” splits of the combined total amounts, providing an
“order-of-significance” indication of the amounts which the Government and the
Parliament expected would likely be spent on each of the individual Courts.
This method was suggested in a submission by the National Native Title
Council to the Senate Legal and Constitutional Affairs Committee inquiry into
this Bill as a method of ensuring the integrity of the funding for the NNTT.
The Committee acknowledges that in terms of reporting to Parliament, FMA
Act agencies are required to produce annual reports in accordance with the
requirements endorsed by the Joint Committee of Public Accounts and Audit. Once
tabled in Parliament, these reports stand referred to the allocated
parliamentary House and Senate Committees. These Committees are able to inquire
into any matters raised in annual reports.
Further, FMA Act agencies are all subject to the Senate Estimates
process whereby Senate Committees examine the proposed expenditure contained in
agency appropriation bills and then directly question public servants in regard
to any matter of concern.
Both annual reports and the Senate Estimates process provide for parliamentary
review of Australian Government agency operations and expenditure. However, in
the case of the National Native Title Tribunal, the Committee did consider that
additional safeguards would protect the tribunal’s ability to meet its broader mandate
as prescribed under the Native Title Act.
In terms of additional oversight, the Committee notes that the Aboriginal and Torres Strait Islander
Social Justice Commissioner is required to ‘prepare and submit a report to
the Commonwealth Minister’ (currently the Attorney-General) each year on the
operation of the Native Title Act and its effect on the exercise and enjoyment
of human rights by Aboriginal and Torres Strait Islander people.
In the Native Title Report 2012 the Commissioner notes that he
will ‘closely monitor the effects of these reforms’.
With the extensive operational changes, explicit reporting on the
operational outcomes, particularly the adequacy of the tribunal’s resources to
fulfil its functions, would be a prudent addition to future Native Title
Reports. It is the view of the Committee that the Attorney‑General should
request such reporting, as provided for under section 209(2) of the Native
The 2012-13 Budget indicated that the Government would ‘achieve savings
of $19.0 million over four years through efficiencies in the operation of the
native title system’.
One of the reasons given for referral of this Bill was for the Committee
to consider the means by which the proposed efficiencies would be achieved. The
Committee heard evidence related to the operations of each of the affected bodies
and has reported findings within this report.
However, on this occasion, the Committee would like to take the
opportunity to remind members that the Parliamentary Budget Office (PBO)
is the most appropriate body to provide advice on the potential financial
implications of a Bill, including whether proposed efficiencies are
realistically achievable. It is not the role of this Committee, nor an
efficient use of the Committee’s time, to be the conduit between the PBO and
The Committee continues to support opportunities to scrutinise Bills,
with these comments aimed only at improving the process of referral and
opportunities for all committees to add value to Bill scrutiny.
Overall, the Committee notes that this Bill is predominantly finalising
and providing the legislative authority for a number of arrangements either
already in place or well-advanced. While the Committee has made a number of
comments, none are intended to preclude the passing of the Bill. Rather, these
are matters for future consideration and/or action.
However, the Committee reiterates its view that a performance audit
undertaken by the ANAO at an appropriate point in time would provide
reassurance that the anticipated benefits in terms of efficiency and
effectiveness of the affected courts and tribunal have been achieved.
On this basis, the Committee has written to the Chair of the Joint
Committee of Public Accounts and Audit, to suggest that such a request be
included in advice to the Auditor-General regarding the audit priorities of
In terms of ensuring independence of each of the affected courts and
tribunal, the Committee is satisfied that agency annual reporting and Senate
Estimates processes will continue to provide ex-ante and ex-post financial scrutiny.
Nevertheless, to ensure safeguards for the resourcing of the National
Native Title Tribunal, the Committee recommends that consideration of the
adequacy of the services provided by the National Native Title Tribunal is explicitly
included in the yearly report of the Aboriginal and Torres Strait Islander
Social Justice Commissioner.
The Committee recommends the House of Representatives pass
the Courts and Tribunals Legislation Amendment (Administration)
The Committee recommends that the Attorney-General, in
accordance with section 209(2) of the Native Title Act 1993, direct
the Aboriginal and Torres Strait Islander Social Justice Commissioner to
include in the yearly reports on the operation of the Native Title Act
1993 consideration of the functioning of the National Native Title
Tribunal, and in particular:
adequacy of tribunal resourcing to effectively fulfil its functions, and
effect on the exercise of the human rights of the Aboriginal and Torres
Strait Islander peoples.
Graham Perrett MP