Chapter 2
Key issues
2.1
Submissions received by the committee supported the bill's objective to
improve the financial sustainability of the federal courts. However, some
submitters expressed concern about the following matters:
-
the lack of constraints on the exercise of power by the Federal
Court CEO;
-
the immediate lack of funding for the federal courts; and
-
employment terms and conditions.
Corporate services and the Federal Court CEO
2.2
The Family Court of Australia's submission raised concern over the
Federal Court CEO's proposed role in relation to corporate services.[1]
The Family Court argued that the bill would make the CEO of the Federal Court
entirely responsible for corporate services and, in that capacity, the CEO would
not be answerable to any head of jurisdiction, including the Federal Court.[2]
2.3
The Family Court stated in particular that information technology plays
a vital role in the operations of the court in relation to its services to the
public.[3]
The submission stated that information technology includes:
..the Court’s case management system (Casetrack) and the
Commonwealth Law Courts Portal, which is an e-filing and information facility
vital to the operation of the Court and to the litigants. The Portal includes
listings of when cases are to be heard and when steps are to be taken,
recording of time spent in Court, recording of applications and affidavits that
have been filed. Casetrack also provides the data which forms the basis for
statistical analysis of all the filings and the kind of matters being dealt
with, including whether they are parenting or property proceedings and whether
family violence allegations form part of applications. The latter is
particularly important because much research is done around family violence and
its prevalence in matters filed.[4]
2.4
The Family Court regarded it as very important that it retain 'some
control' over its information technology system, and was concerned that the
bill did not allow that to occur.[5]
2.5
The Family Court further raised concern over the exercise of power by
the CEO. The submission noted that the CEO of the Federal Court would be given
the power to do 'all things necessary or convenient' for the purpose of
providing corporate services.[6]
According to the Family Court, there would be no constraints on the exercise of
that power other than to consult with the heads of jurisdictions of the three
courts and the two other CEOs, and a failure to consult would not affect the
validity of a decision.[7]
2.6
The submission stated that the only genuine constraint on the exercise
of power was in relation to decisions which had the effect of imposing an
expenditure obligation on any of the courts in regard to administrative affairs
of the court.[8]
The Family Court was concerned that there was otherwise no constraint on
decision making, and no criteria for how decisions would be made.
2.7
It further stated:
Nor is there any provision for governance arrangements
between the heads of jurisdiction, the Chief Executive Officers of the Family
Court and the Federal Circuit Court and the Chief Executive Officer [of the
Federal Court] as to how a particular policy may be conceived, proposed and
implemented. No board-like structure, where the relevant heads of jurisdiction
can discuss policy or other matters which might affect the exercise of the
Chief Executive Officer’s powers, is provided for in the Bill.[9]
2.8
The submission argued that it was an unusual form of corporate management
to have the CEO of one court responsible for corporate services of the other
two courts with no accountability, requirement for transparency or an
overseeing body to set policy.[10]
While there were overarching general obligations under the PGPA Act, the Family
Court was concerned that 'they are not supported by any specific provisions in
the bill which would give assistance as to how those general obligations are
met'.[11]
2.9
The Family Court suggested that the bill be amended to require that two
of the three heads of jurisdiction must agree on any decision that would affect
the operating processes of the courts, and that any expenditure over $500,000
must be communicated to the heads of jurisdiction in writing with reasons for
the decision reached.[12]
The submission suggested that the heads of jurisdiction of the three courts
meet at least once per year with their respective CEOs to set policy for the
coming
12 months. Further, any dispute between heads of jurisdiction about policy
which could not be resolved should be adjudicated by the Attorney-General in
consultation with the three heads of jurisdiction.[13]
2.10
The department advised that it was expected that the Family Court CEO
and Federal Circuit Court CEO would work closely with the Federal Court CEO to
ensure that the delivery of corporate services was tailored to each court's
needs, and in relation to matters that affected the administrative entity as a
whole.[14]
The department pointed out that mechanisms existed in the bill to ensure
consultation between the Federal Court CEO, the heads of jurisdiction and the
other CEOs for decisions relating to corporate services.[15]
The department stated that details relating to corporate services and
consultation requirements would be set out in a memorandum of understanding
(MOU) between the three courts.[16]
2.11
The department further outlined that although the courts would be within
a single administrative entity, the bill would provide clarity and control for
each court in relation to its budget allocation. Each court would have its own
budget outcome statement, and appropriations acts would set an allocation for
each outcome within the entity.[17]
The bill contained provisions that would prevent the Federal Court CEO from
spending funds on outcomes to which they were not assigned.[18]
The Federal Court CEO would also be prevented from imposing an expenditure
obligation on the courts when exercising corporate services powers and
functions without the consent of the relevant head of jurisdiction or, where
agreement could not be reached, the Attorney-General.[19]
The department highlighted that these provisions were inserted following
consultation with heads of jurisdiction and would provide certainty to the
courts in relation to their budgets.[20]
Funding the courts
2.12
The Law Council of Australia (Law Council) welcomed the reinvestment of the
proposed savings generated by the bill in the courts, as consistent with the
objective of sustainable long term funding of the federal courts.[21]
2.13
The Law Council remained concerned, however, about the immediate lack of
judicial resources in the Family Court and Federal Circuit Court and the delay
before the savings accrued from the passage of the bill would come into effect.
The Law Council highlighted that judges in these courts were under significant
pressures due to increasing workloads, the stressful nature of high-conflict
proceedings and the failure to fill judicial vacancies as they occurred.[22]
2.14
The Law Council was of the view that the Federal Circuit Court should be
a particular focus of the reinvestment from the bill. The Council argued that
in order to discharge the workload the Federal Circuit Court already had, and
the additional and increasing workload arising from the courts' expanding
jurisdiction, including family law, industrial law and migration matters, the
increased funding for the Federal Circuit Court and the appointment of
additional judges in each jurisdiction was critical.[23]
2.15
The Law Council believed that the provision in the bill of a separate
CEO to support the Chief Judge of the Federal Circuit Court in the administration
of that court, and safeguarding its discrete budget appropriation, were both
necessary and appropriate measures if the court was to meet its objectives.[24]
2.16
The Community and Public Sector Union (CPSU) highlighted that the bill
was focused on restructuring the courts to reduce costs rather than addressing
the bigger challenge of the funding crisis facing the courts. The submission
stated that the Federal Circuit Court and Family Court had been struggling with
inadequate funding for some time and while the courts received $22.5 million in
additional funding over four years in the 2015–16 Budget, they were still
facing a blowout in expenses of $75 million by 2017–18.[25]
2.17
The CPSU argued that rather than focusing on restructuring the courts,
the government needed to address chronic funding shortfalls and provide proper
levels of resourcing to the courts.[26]
Employment terms and conditions
2.18
The CPSU raised a further concern, that the merger may result in amalgamated
corporate services staff facing relocation or redundancy.[27]
The CPSU also suggested an amendment to the bill that would ensure all staff were
employed under the Federal Court Enterprise Agreement, to ensure that staff in
the merged structure were employed under one set of terms and conditions.[28]
2.19
The department in its submission highlighted that the bill contained
transitional provisions which would preserve the courts' existing enterprise
agreements until a new agreement came into operation for the single
administrative entity.[29]
Committee view
2.20
The committee welcomes the merger of the courts into a single
administrative entity. While submitters offered various proposals with a view
to improving the legislation, all acknowledged the need to place the courts on
a sustainable funding footing over the long term. With savings arising from the
efficiencies to be reinvested back into the courts, the bill would leave the
courts far better placed to deliver services to litigants.
2.21
The committee has considered the concerns raised by submitters,
including those relating to transparency and accountability between the courts under
the new arrangements. The committee notes that details relating to corporate
services matters and effective consultation between the three courts are to be
set out in an MOU, which would provide for the appropriate management of
corporate services. The committee encourages the three courts to continue
working expeditiously toward an MOU which will meet the needs and circumstances
of all.
2.22
To ensure that the new arrangements are working effectively and that the
sustainability of the courts' workloads and financial situations is improving, the
committee would welcome a review of the legislation by the Attorney-General's
Department one year after its implementation, in consultation with the three
courts. Such a review would allow the department to advise the government if
any refinement of the bill or the arrangements was required.
Recommendation 1
2.23
The committee recommends that the bill be passed.
Senator
the Hon Ian Macdonald
Chair
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