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Budget 2009–10: Legal issues and the Attorney-General's portfolio
Courts
Morag Donaldson
Restructure of the federal courts
On 5 May 2009, the Attorney-General, Robert McClelland
announced plans to dismantle the Federal Magistrates Court (the FMC) and merge
its operations and caseload into the Family Court of Australia and the Federal
Court of Australia.[1] The FMC was created by the Howard Government in 2000 in an attempt to provide
litigants with quicker and cheaper access to justice than litigating in either
the Family Court (family law matters) or the Federal Court (other federal law
matters, such as bankruptcy). However, the FMC has not been as successful as
hoped. As identified in a report commissioned by the Attorney-General’s
Department in late 2008, the FMC suffers from inefficient and costly
administration and there is widespread confusion among litigants about whether
it or the Family Court (or the Federal Court) is the more appropriate venue to
resolve their disputes.[2]
Under the new plans, all family law matters will be heard by
the Family Court (which will be restructured to have two tiers). Existing
magistrates will generally hear and determine matters in the second (bottom)
tier, and existing judges will generally hear and determine appeals and complex
matters. All other federal law matters will be transferred to the Federal
Court, where a similar two-tier system will also be adopted.[3] Apparently, Chief Justice Michael Black (Chief Justice of the Federal Court)
opposes the restructure on the grounds it is ‘bad policy’ and will threaten the
Federal Court’s ‘high reputation’.[4] However, the Attorney-General has suggested that the Chief Justice will have a
right of veto over any appointment to the second tier to protect the culture
and competence of the judiciary.[5]
Although the Government has not made it clear, presumably
legislation will be required to give effect to the proposed restructure.[6] The Government has nominated a start date for the restructured courts of 1
January 2010, but this is likely to be subject to the successful passage of any
Bill required to give effect to the plans.
The initiative will save $7.8 million over four years,
largely by reducing duplicated administrative costs. Of these savings, $1.5
million will be redirected to the provisions of enhanced family support
(including access to family consultant services) to assist families to resolve
disputes in a non-adversarial way.[7] Revenue for the FMC has decreased by $38.308 million for 2009–10, with
$28.531 million transferred to the Family Court and the Federal Court and
some savings being retained by Government. The FMC is budgeting on an operating
loss of $5 million, largely attributable to the cost of transcript, family
reports and interpreters.[8]
Extra funding for the High Court of Australia
The High Court of Australia will receive additional funding
of $9 million over four years, including capital funding of
$5.5 million.[9] For 2009–10 the additional funding is just under $2.4 million, with the
total net resourcing for 2009–10 being $22.12 million.[10] The additional funding is for ‘security, preventative maintenance, electronic
legal subscriptions, library acquisitions and [a new corporate information]
technology infrastructure’.[11] In last year’s annual report, Chief Justice Robert French highlighted the
urgent need for capital funding to improve the ‘deteriorating’ building and
surrounds that are not presently ‘capable of being utilised to their full
potential’.[12] His Honour argued that the ‘financial and infrastructure issues referred in
this Report and the special position of the Court under the Constitution show
up the need for a comprehensive reassessment of the basis upon which it is
resourced’.[13]
[1]. R McClelland
(Attorney-General), Rudd Government to reform federal courts, media
release, 5 May 2009, viewed 14 May 2009, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query%3DId%3A%22media%2Fpressrel%2F7WGT6%22
[2]. Attorney-General’s
Department, Future governance options for federal family law courts in
australia: striking the right balance, August 2008, released to the public
in November 2008, viewed 14 May 2009, http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Report+on+future+governance+of+federal+family+courts+in+Australia+-+November+2008.pdf/$file/Report+on+future+governance+of+federal+family+courts+in+Australia+-+November+2008.pdf
[3]. R McClelland
(Attorney-General), Rudd Government to reform federal courts, media
release, 5 May 2009, viewed 14 May 2009, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query%3DId%3A%22media%2Fpressrel%2F7WGT6%22
[4]. M Pelly, ‘Quick, cheap agenda
for courts’, The Australian, 8 May 2009, p. 27, viewed 14 May 2009, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query%3DId%3A%22media%2Fpressclp%2FCLHT6%22
[5]. M Pelly, ‘Quick, cheap agenda
for courts’.
[6]. M Pelly and N
Berkovic, ‘Barrier to federal courts restructure’, The Australian, 14
May 2009, p. 2, viewed 14 May 2009, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query%3DId%3A%22media%2Fpressclp%2FH0KT6%22
[7]. R McClelland
(Attorney-General), Rudd Government to reform federal courts, media
release, 5 May 2009, viewed 14 May 2009, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query%3DId%3A%22media%2Fpressrel%2F7WGT6%22
[8]. Australian
Government, Portfolio budget statements 2009–10: budget related paper no.
1.2: Attorney-General’s Portfolio, Commonwealth of Australia, Canberra,
2009, p. 357, viewed 14 May 2009, http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(084A3429FD57AC0744737F8EA134BACB)~18+PBS+09_10+FMC_web+Final.pdf/$file/18+PBS+09_10+FMC_web+Final.pdf
[9]. Australian
Government, Portfolio budget statements 2009–10: budget related paper no.
1.2: Attorney-General’s Portfolio, Commonwealth of Australia, Canberra,
2009, p. 366.
[10]. Australian Government, Portfolio
budget statements 2009–10: budget related paper no. 1.2: Attorney-General’s Portfolio,
pp. 366–367.
[11]. Australian Government, Portfolio
budget statements 2009–10: budget related paper no. 1.2: Attorney-General’s Portfolio,
p. 366.
[12]. High Court of Australia, Annual
report 2007–08, p. 12, viewed 14 May 2009, http://www.hcourt.gov.au/annual_reports/2008annual.pdf
[13]. High Court of Australia, Annual
report 2007–08, p. 13.
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