Bills Digest no. 76 2015–16
PDF version [681KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Moira Coombs
Law and Bills Digest Section
3 February 2016
Contents
Purpose
of the Bill
Structure of the Bill
Background
Committee consideration
Position of major interest groups
Financial implications
Key issues and provisions
Schedule 1—Federal Court of Australia
Date introduced: 2 December
2015
House: Senate
Portfolio: Attorney-General
Commencement: Sections
1 to 3 and Schedule 6 commence on Royal Assent. Schedule 1, Part 1, Schedule 2,
Part 1, Schedules 3 and 4 and Schedule 5, Parts 1 and 2 commence on 1 July
2016. Schedule 1, Part 2, Schedule 2, Part 2 and Schedule 5, Part 3 commence on
1 January 2018.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Courts Administration Legislation
Amendment Bill 2015 (the Bill) is to achieve greater efficiencies in the
corporate management of the Federal Court of Australia (Federal Court),[1]
the Family Court of Australia (Family Court) and the Federal Circuit Court of
Australia (Federal Circuit Court) (collectively referred to hereinafter as ‘the
Courts’).
To achieve this, the Bill will designate the Courts a
single administrative entity under the Public Governance, Performance and
Accountability Act 2013 (the PGPA Act), and as a single statutory
agency under the Public Service Act 1999. The Bill will also place
responsibility for the corporate management of the three Courts with the Chief
Executive Officer (CEO) of the Federal Court.
It is proposed that the financial savings achieved as a
result of these changes will be reinvested in the Courts. The Bill implements a
budget decision announced by the Government as part of the 2015-16 Budget.[2]
The Bill consists of six Schedules:
- Schedule
1—amends the Federal
Court of Australia Act 1976 (Federal Court Act)[3]
to establish the framework for a merged administrative entity, with the Federal
Court as the listed entity in the PGPA Act, and the Federal Court CEO
the accountable authority and head of the new statutory agency.
- Schedule
2—amends the Family
Law Act 1975[4]
to make the Court’s CEO independent and amend provisions to make them
consistent with those of the other courts. Currently the administrative and
corporate services of the Family Court and the Federal Circuit Court have been
jointly administered. The Federal Court CEO will be responsible for the
corporate services of the Family Court.[5]
- Schedule
3—amends the Federal
Circuit Court of Australia Act 1999 (Federal Circuit Court Act)[6]
to establish an independent CEO for this Court and make the necessary changes
to provisions to make then consistent with those of the other two Courts. The
Federal Court CEO will be responsible for the corporate services of the Federal
Circuit Court.
- Schedule
4—amends the Native
Title Act 1993[7]
relating to the National Native Title Tribunal to make provisions consistent as
part of the merged entity.
- Schedule
5— makes consequential amendments.
- Schedule
6—sets out application and transitional provisions.
As part of the 2015–16 Budget, the
Government announced the merging of the corporate services functions of the Federal
Court, the Family Court and the Federal Circuit Court:
The Government will provide funding of
$22.5 million over four years to streamline and improve the sustainability
of the Family Court, Federal Circuit Court of Australia and the Federal Court
of Australia (the Courts). In addition, the Courts will enhance their
sustainability through greater efficiencies, including merging their corporate
functions from 1 July 2016.
The Government will also provide
$30.0 million to the Department of Finance for refurbishment of Court
buildings. Refurbishments will include improvements to holding cells consistent
with the recommendations of the Royal Commission into Aboriginal Deaths in
Custody, and improvements to the safety of child dispute conference areas.
The cost of this measure will be met through
additional revenue of $87.4 million over four years from changes to the
fee structures for the Courts.[8]
By merging the corporate services functions of the three
Courts, the Government intends to place ‘the courts on a sustainable funding
footing over the longer term, leaving them far better placed to deliver
services to litigants. This is because savings arising from the efficiencies
will be reinvested in the courts’.[9]
Further the Minister noted:
Without the merger implemented by the Bill, alternative and
much less palatable measures would need to be explored to allow budgets to be
met. Because access to the courts is a fundamental tenet upon which our justice
system is based, the Government was anxious to ensure budget rectitude did not
result in frontline court services being cut.[10]
Media reports suggest that the family law system is in
crisis. A former Federal Circuit Court judge (Giles Coakes), is reported as
having accused ‘the government of neglect for failing to appoint family law
judges in a timely manner’ and that ’the delay in appointing judges had caused
court lists to blow out and children had been put at risk’.[11]
Mr Coakes noted further:
These (cases involve) dysfunctional families and children at
risk from dysfunctional parents because of drug abuse, alcohol abuse, domestic
violence in all its forms and mental illness.
That represents a real danger to the children. Until a case
can be heard and finalised by a judge, those risks are continuing.[12]
On 29 October 2015, the Attorney-General, Senator George
Brandis, announced the appointment of four judges to the Federal Circuit Court.
The Attorney-General foreshadowed the appointment of two more judges to the
Federal Circuit Court.[13]
Reports to Government
Recommendations contained in a number of reports have informed
the Government’s decision to merge the corporate services functions of the three
Courts.
Skehill Review
One of the objects of the Skehill Strategic Review of
Small and Medium Agencies in the Attorney-General’s Portfolio, completed in
2012, was:
4. With regard to the federal courts and tribunals in the
Attorney-General’s portfolio, the review will consider options
for improving efficiency and flexibility in court and tribunal administration,
including service delivery, whether the courts and tribunals are financially
viable in their current form, including options for improving shared services
and administration arrangements.
5. In addition to those matters set out in paragraph 4, the
review should consider the potential for shared services and administration
arrangements between the tribunals within the Attorney-General’s portfolio and
administrative review bodies in other portfolios.
6. Paragraph 4 applies to the Federal Court of Australia, the
Family Court of Australia, the Federal Magistrates Court of Australia, the
Administrative Appeals Tribunal and the National Native Title Tribunal but does
not apply to the High Court of Australia.[14]
The report of this review noted the considerable savings
that have resulted from the merger in 2008 of the administration of the Family
Court and the Federal Magistrates Court (now the Federal Circuit Court).[15]
5.33 The administrative merger produced considerable savings
and, as a result, the Government reduced the total appropriation for the two
Courts by some $7.8m over four years on the basis the new arrangements would
generate savings to the Budget of that order. Government reinvested $1.5m over
4 years in additional Family Reports resulting in a net saving of $6.3m to the
Budget over 4 years.[16]
At around the same time, the Government also announced in
the 2012–13 Budget, an initiative to incorporate the National Native Title
Tribunal into the Federal Court and for it to operate as a distinct
organisational unit of the Federal Court. The Government announced:
that it would implement the recommendations of the Strategic
Review (Skehill Review) as they relate to the National Native Title Tribunal
(NNTT) to strengthen and streamline the native title system. The changes
involve transferring native title claims mediation functions from the National
Native Title Tribunal to the Federal Court of Australia. The National Native Title
Tribunal will continue to perform all of its other current functions, as a
distinct organisational unit of the Federal Court of Australia.
The initiative builds on the Government’s 2009 reforms, which
gave the Federal Court greater case management powers. The number of consent
determinations rose from 11 in 2008–2009, the last full year before the
Government’s reforms came into effect, to 24 in 2010–11.These reforms are
expected to generate $19m in savings over the next four years, which will be
reinvested in the Stronger Futures in the Northern Territory initiative.[17]
Independent Reviews of the Federal
Court, Family Court and the Federal Circuit Court of Australia
The annual report of the Attorney-General’s Department for
2014-15 refers to several other reviews of the federal court system which have also
informed the content of this Bill:
In December 2014, the department engaged Ernst & Young to
identify savings and implementation costs of reform options for the federal
courts outlined in a previous independent review by KPMG from March 2014. The
Attorney‑General considered the findings in developing a package of
reform measures to streamline and improve the sustainability of the courts as
part of the 2015–16 Federal Budget, alongside the recommendations of the Productivity
Commission’s 2014 Access to Justice Arrangements report and the 2013–14
National Commission of Audit. On 23 April 2015, the department engaged Ernst
& Young to look at further structural and funding issues in consultation
with the federal courts.[18]
National Commission of Audit
In 2014, the National Commission of Audit report considered
merit in having shared administrative arrangements for the courts:
It would be possible to merge the Federal Court of Australia
with the Family Court and Federal Circuit Court of Australia. This would reduce
administrative costs and provide additional opportunities to share facilities
and streamline back-office functions to achieve more efficient administration
of justice.[19]
Independent Reviews
It would appear that the Ernst and Young and the KPMG
reports are not publicly available. However, the Explanatory Memorandum notes:
The 2014 KPMG review into the performance and funding of the
federal courts examined and recommended incorporating the Federal Court into
shared administration arrangements with the Family Court and Federal Circuit
Court. The savings from this proposal were identified and further analysed in
2014-15 by Ernst & Young.[20]
In September of 2014, the Law Council of Australia (Law
Council) called for the Government to release the KPMG report into the funding
of the Federal Courts for public comment.[21]
The President of the Law Council noted that:
If real progress is to be made in addressing the funding
crisis facing the Federal Courts, the Government needs to review the
recommendations of the report with input from key stakeholders, including the
legal profession.[22]
The Law Council commented that if media reports are
accurate, they confirm what the legal profession has been saying for some years,
that federal courts are drastically underfunded, and that the public is
suffering as a result. The Law Council noted that the problems in the family
law sector are ‘particularly severe’.[23]
Senate Selection of Bills Committee
The Bill has been referred to the Senate Legal and
Constitutional Affairs Committee for inquiry
and report by 2 February 2016.[24]
Senate Standing Committee for the
Scrutiny of Bills
The Committee has made no comment on the Bill to date.
Family Court of Australia
In a submission to the Senate Standing Committee on Legal
and Constitutional Affairs inquiry into the Bill, the Family Court CEO raised
serious concerns about proposed Part IIB of the Federal Court Act (at item
43 of Schedule 1 of the Bill) concerning the merged CEO entity for
the courts. The Family Court CEO considers that in the provision of corporate
services to the three courts, the Federal Court CEO is not answerable to any
head of jurisdiction, including the Chief Justice of the Federal Court. The Family
Court CEO comments:
There are no constraints on the exercise of [the Federal
Court CEO’s] power [in providing corporate services], other than to consult
with the heads of jurisdiction of the three courts and the Chief Executive
Officers of the Family Court and the Federal Circuit Court [18Z(3)]. However, a
failure to consult does not affect the validity of a decision [18Z(4)]. The
only constraint on the exercise of power is that a decision which has the
effect of imposing an expenditure obligation on any of the courts in relation
to the administrative affairs of the Court cannot be made unless there is both
[18Z(5)(d)]:
a) consultation with the Chief Justice or the Chief
Judge by the Chief Executive Officer; and
b) the consent of the Chief Justice or the Chief
Judge
If consent is not given, then the Attorney-General must
consent to the decision after consultation with the Chief Justice or the Chief
Judge [18Z[(5)](e)].
There is otherwise no constraint on decision making, nor any
criteria for how decisions are to be made. 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 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.
In essence then, subject only to the inability to take
decisions which affect the administrative affairs of the Courts, the Chief
Executive Officer can make whatever decisions he or she wishes, without the
need to advise about what policy is being followed, why a decision is being
made, or indeed to provide any transparency about decision making whatsoever.[25]
Further the CEO comments:
The lack of requirement for any transparency in decision
making becomes starker when regard is had to the potential conflict of interest
that arises when giving a Chief Executive Officer of one court unconstrained
power to make decisions that affect all three courts. With the greatest of
respect, it is an unusual form of corporate management to have the Chief
Executive Officer of one court responsible for corporate services of the other
courts, with no accountability, requirement for transparency, nor an overseeing
body, to set policy. [26]
Law Council of Australia
The Law Council supports the Bill, and in a submission to
the Senate inquiry into the Bill, has welcomed commitments made by the
Attorney-General that all savings accruing from this measure (to merge
corporate services functions) would be re-invested in the court system and that
the judicial vacancies in the Federal Circuit Court would be filled.[27]
Despite welcoming the re-investment of savings, the Law
Council remains concerned about the resourcing of the federal courts system
generally:
The Law Council remains concerned about the immediate lack of
judicial resources in the Family Court and the Federal Circuit Court and the
delay before the savings accruing from the passage of this Bill will be realised.
Judges in these courts are already under significant pressure due to increasing
workloads, the stressful nature of high-conflict proceedings, and the failure
to quickly fill all judicial vacancies as they occur.
Judicial vacancies result in unacceptable delays in the
listing of matters...
The provision of adequate judicial resourcing for both the
Family Court and Federal Circuit Court, and ensuring that judges are replaced
in a timely manner, are matters requiring urgent attention.[28]
The Explanatory Memorandum notes that the merging of the
courts’ corporate functions is expected to deliver efficiencies to the courts
of $9.4 million over the six financial years to 2020-21 and result in ongoing
annual efficiencies of $5.4 million from this time.[29]
There was a commitment by the Attorney-General in December 2015 that those
savings would be re-invested in the federal courts system.[30]
Whether this arrangement would continue under future governments is not clear.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers the Bill to be compatible with those instruments.[31]
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights has made
no comment on this Bill to date.
Schedule 1 makes amendments to the Federal Court
Act to exclude corporate services from the administrative affairs of the
court for which the Chief Justice is responsible and to make the necessary
adjustments required for a merged corporate services function for the Federal,
Family and Federal Circuit Courts. The Bill will establish the merged courts
administrative entity under the Public Governance,
Performance and Accountability Act 2013[32] (PGPA Act), and the
statutory agency under the Public Service Act.
The Chief Justice of the Federal Court is presently responsible
under subsection 18A(1) of the Federal Court Act for managing the
administrative affairs of the Court. To that end, the Chief Justice has power
to do all things that are necessary or convenient to be done, including
entering contracts and acquiring and disposing of property on behalf of the
Commonwealth (subsection 18A((2)). Currently the Chief Justice cannot enter a
contract which exceeds $250,000 without the approval of the Attorney-General. Item
7 proposes to alter this limit to $1,000,000.
Item 5 inserts proposed subsections 18A(1A) and
(1B). Proposed subsection 18(1A) defines the administrative
affairs of the court as not including the corporate services of the court.
The matters described as corporate services of the court are set out in proposed
subsection 18A(1B). Those matters are:
-
communications
-
finance
-
human resources
-
information technology
-
libraries
-
procurement and contract management
-
property
-
risk oversight and management
-
statistics and
-
any other matter prescribed by a determination under subsection 18A(5).[33]
Arrangements with other courts
Item 11 inserts proposed section 18BAA. This
new section will enable the Chief Justice of the Federal Court to make
arrangements with the chief judicial officer of another court, for an officer
of that court to perform on behalf of the Federal Court any or all of the
functions set out at proposed paragraphs 18BAA(1)(a) to (f). Such
functions are:
- receipt
of documents to be lodged or filed in the Court
- signing
and issuing of writs, commissions and process for the purposes of any
proceedings in the Court
- authentication
of orders of the Court
- administration
of oaths and affirmations, witnessing of affidavits for the purposes of
proceedings
- such
other non-judicial functions as permitted by the Rules of Court to be performed
under an arrangement and
- such
other non-judicial functions as the Chief Justice considers appropriate.[34]
If such an arrangement is in place, the officer of that
court may perform the function on behalf of the Federal Court despite any other
provision in the Federal Court Act or any other Commonwealth law (proposed
subsection 18BAA(2)). The performance of that function on behalf of the
Federal Court by an officer of another court has effect as if the function had
been performed by the Federal Court (proposed subsection 18BAA(3)).
Item 12 repeals Division 1A of Part IIA of the Federal
Court Act which contains a provision relating to the application of the PGPA
Act to the existing Federal Court. This Division is replaced by proposed
Division 2 of Part IIB which includes the new arrangements for the
corporate services function and other matters for all three courts.
Item 14 repeals section 18C which currently allows the
appointment of the Registrar by the Governor‑General and substitutes it
with proposed section 18C which establishes the position of Chief
Executive Officer (CEO) and Principal Registrar of the Court to replace the
existing position of Registrar. The CEO is to be appointed by the
Governor-General on the nomination of the Chief Justice.
Merged Corporate Services Function
Part IIB consists of five Divisions:
- Division
1—Corporate services
- Division
2—Application of the PGPA Act
- Division
3—Application of the Public Service Act
- Division
4—Other powers of the Chief Executive Officer and
- Division
5—Other matters.
Division 1—Corporate services
Item 43 inserts proposed Part IIB into the Federal
Court Act, which will regulate the corporate services functions and other
matters relating to the newly merged single administrative entity for the three
Courts. Proposed section 18Z of Division 1 provides for the
Federal Court CEO to be responsible for providing corporate services to all
three Courts. The Federal Court CEO has the power to do all things
necessary or convenient to be done in providing those services to the Courts (proposed
subsection 18Z(2)). When performing his/her functions or exercising powers
under section 18Z, the Federal Court CEO must consult with the following
persons:
- the
Chief Justice of the Federal Court
- the
Chief Justice of the Family Court
- the
Chief Judge of the Federal Circuit Court
- the
CEO of the Family Court
- the
CEO of the Federal Circuit Court[35]
(proposed subsection 18Z(3)).
However a failure to comply with subsection 18Z(3) does
not render the decision invalid (proposed subsection 18Z(4)).
When performing functions or exercising powers under proposed
section 18Z, the Federal Court CEO must not make a decision that would have
the effect of placing an expenditure obligation on the Federal Court, the
Family Court or the Federal Circuit Court in relation to the administrative
affairs of any of those courts unless the CEO has consulted the relevant Chief
Justice or Chief Judge, and that person consents to the decision, or the
Attorney-General consents to the decision after relevant consultation with the
relevant Chief Justice or Chief Judge on the matter (proposed subsection
18Z(5)).
Under proposed subsection 18Z(6), the Federal Court
CEO may delegate in writing any of his/her functions or powers under proposed
section 18Z to a Registrar or registry staff member of the Court; or a Sheriff,
Deputy Sheriff or Marshall of the Court. The Federal Court CEO may give written
directions on how the function is to be performed or how the power is to be exercised
(proposed subsection 18Z(7)) and the delegate must comply with any
directions given by the Federal Court CEO (proposed subsection 18Z(8)).
Comment: The Family Court has serious concerns with
these provisions. As mentioned above, the Family Court comments that it is ‘an
unusual form of corporate management to have the Chief Executive Officer of one
court responsible for corporate services of two other courts, with no
accountability, requirement for transparency, nor an overseeing body, to set
policy’.[36]
Chief Justice Bryant of the Family Court is reported to have said that ‘the
legislation had addressed a number of “crucial issues”, but not “how decisions
are to be made in the corporate services area and what, if any, governance
arrangements should attend them”’.[37]
Application of the PGPA Act
Proposed section 18ZB of Division 2 establishes
the governance structure of the new administrative entity for the purposes of
the PGPA Act. Proposed paragraph 18ZB(a) lists the persons
who will comprise the listed entity[38]
for the purposes of the PGPA Act. The list will include those persons
who currently form the Federal Court entity and the Family Court and Federal
Circuit Court entity.[39]
Proposed paragraph 18ZB(b) provides that the listed entity will be
known as the Federal Court of Australia. The Federal Court CEO is the accountable
authority of the listed entity. The accountable authority is the person or
body responsible for managing the entity for the purposes of the PGPA Act.
The PGPA Act imposes a number of duties on accountable authorities (proposed
paragraph 18ZB(c)). Briefly these are:
- to
govern a Commonwealth entity (section 15)
- to
establish and maintain systems relating to risk and control (section 16)
- to
encourage cooperation with others (section 17)
- to
take into account the risks and effects of requirements imposed on others in
relation to the use or management of public resources (section 18) and
- to
keep the responsible Minister and Finance Minister informed (section 19).[40]
Delegation of powers under the PGPA
Act
The accountable authority has the power, under subsection
110(1) of the PGPA Act, to delegate to an official of a non-corporate
Commonwealth entity various powers, functions or duties under that Act). The
accountable authority also has the power to delegate powers, functions or
duties that have been delegated by the Finance Minister to the accountable
authority under subsection 107(1) of the PGPA Act.
Proposed section 18ZC has the effect of limiting
the delegation powers of the Federal Court CEO in relation to the
administrative affairs of the Family Court and the Federal Circuit Court.[41]
Proposed paragraph 18ZC(a) provides that for the delegation of a matter relating
to the administrative affairs of the Family Court, section 110 will apply as if
the reference to ‘an official’ in that section is a reference to the Family
Court CEO or the holder of an office or position nominated by the Family Court
CEO. Similar provision is made under proposed paragraph 18ZC(b) for
delegations relating to the administrative affairs of the Federal Circuit Court.
The Explanatory Memorandum states that ‘the Federal Court CEO’s delegations
powers would not be limited with respect to the administrative affairs of the
Federal Court and National Native Title Tribunal, or the corporate services of
the three courts.’[42]
Management of Appropriations for
the merged entity
Proposed section 18ZD applies if, in an Appropriation
Act for the ordinary annual services of Government, there is a departmental
item, an outcome for the listed entity relating to the administrative affairs
of one or other of the three courts, and an outcome amount.[43]
There will be a single appropriation for the merged entity and the Federal
Court CEO will be responsible for ensuring that the amount relating to an
outcome is spent on that outcome.[44]
Before spending money on another or separate outcome for the listed entity, proposed
subsection 18ZD(2) provides that the Federal Court CEO must consult
and obtain the consent of the relevant Chief Justice or Chief Judge to
the spending, or obtain the consent of the Attorney-General to the spending.
Before giving consent, the Attorney-General must consult with the
relevant Chief Justice or Chief Judge about the spending (proposed
subsection 18ZD(3)). The Explanatory Memorandum describes section 18ZD as a
‘constraint on how the Federal Court CEO as accountable authority under the PGPA
Act spends money for the merged administrative courts entity’.[45]
Further the Explanatory Memorandum notes:
New section 18ZD would have the effect of protecting the
budgets related to the management of the administrative affairs of the courts,
which heads of jurisdiction would have responsibility for managing, assisted by
their respective CEOs. Each court’s ability to decide how to spend the money
allocated in its budget would help safeguard the court’s independence.[46]
Application of the Public Service
Act
Proposed section 18ZE of Division 3 defines statutory
agency for the purposes of the Public Service Act. Currently section
18Q defines ‘statutory agency’ under the Federal Court Act as comprising
the Registrar and the Australian Public Service (APS) employees assisting the
Registrar. It also provides that the Registrar is the head of the statutory
agency. Section 18Q is repealed by item 36 of Schedule 1 of the Bill. Proposed
section 18ZE provides that the merged statutory agency will
comprise:
- the
CEO of the Federal Court of Australia, who will be the head of the statutory
agency and
- APS
employees referred to in:
- section
18N of the Federal Court Act
- section
38N of the Family Law Act
-
sections
101, 111A and 112 and subsections 106(1), 107(1), 109(1) and 110(1) of the Federal
Circuit Court Act and
- subsection
130(3) of the Native Title Act.
Delegation of powers or functions
under the Public Service Act
Subsection 78(7) of the Public Service Act provides
that an agency head may delegate to another person in writing any powers
or functions under that Act.[47]
Proposed section 18ZG would limit the Federal Court CEO’s powers to
delegate functions in respect of staff of the agency for a matter relating to
the administrative affairs of the Family Court or the Federal Circuit Court to
the respective CEOs of those two courts. The Explanatory Memorandum notes:
This would ensure that the respective CEOs are delegated Public
Service Act powers that would support their functions in relation to
assisting heads of jurisdiction with administrative affairs. Subsection 78(9)
of the Public Service Act would allow the Family Court CEO and the
Federal Circuit Court CEO to sub-delegate these powers.[48]
Chief Executive Officer of the
Federal Court—other powers
Proposed section 18ZH of Division 4 of Part IIB
provides for the appointment of other court officers by the Federal Court CEO,
thereby centralising the appointment functions of the new entity. The officers
who may be appointed are those referred to in:
- Federal
Court Act paragraphs 18N(1)(aa) to (e) which include such officers as
registrars, district registrars, deputy district registrars, sheriffs, deputy
sheriffs and marshals
- Family
Law Act paragraphs 38N(1)(a) to (f) which include Principal registrar,
registrars and deputy registrars, registry managers, family consultants and
marshals and deputy marshals
- Federal
Circuit Court Act paragraphs 99(1)(a) to (f) which include registrars,
sheriff and deputy sheriffs, marshal and deputy marshals and family consultants
and
- Native
Title Act subsection 130(2) which refers to deputy registrars.
Proposed subsections 18ZH(2) and (3) provide
that the Federal Court CEO may delegate his/her powers and functions relating
to appointments of other court officers to the Family Court CEO and the Federal
Circuit Court CEO.
Current section 18R of the Federal Court Act
concerns the engagement of consultants for the Federal Court by the Registrar.
This section is repealed by item 36 of Schedule 1 of the Bill. Proposed
subsection 18ZI(1) provides that the Federal Court CEO may engage
consultants with suitable qualifications and experience to perform services for
the three courts and the National Native Title Tribunal. The Federal Court CEO
may also engage people to provide family counselling services or family dispute
resolution services under the Family Law Act—proposed subsection
18ZI(2). Such an engagement under subsections 18ZI(1) or (2) is made on
behalf of the Commonwealth and by written agreement—proposed subsection
18ZI(3).
The CEO may delegate his/her powers under proposed
subsections 18ZI(1) or (2) to either the Family Court CEO or the Federal
Circuit Court CEO—proposed subsections 18ZI(4) and (5).
Proposed subsection 18ZK(1) enables an officer of
the Federal Court, the Family Court and the Federal Circuit Court to be an
officer of one or more of those courts. This will facilitate the movement of
staff between the courts and allowing for greater flexibility. Proposed
subsection 18ZK(2) provides that this is so despite anything in the Federal
Court Act, the Family Law Court or the Federal Circuit Act.
Part 2—amendments commencing 1
January 2018
Items 63 and 64 of Schedule 1 reflect the
amendments to the Family Law Act in Part 2 of Schedule 2 to merge the
offices of Family Court Chief Executive Officer and Principal Registrar from 1
January 2018. Currently, paragraph 38N(1)(a) of the Family Law Act
provides for the separate role of Principal Registrar. A transition period is
provided in which to arrange the appointment of a person with the appropriate
qualifications and expertise to the merged role of Family Court CEO and
Principal Registrar.
Schedule 2—Family Court of
Australia
Schedule 2 amends the Family Law Act to establish
the Family Court CEO as an independent CEO. Currently the Family Court and the
Federal Circuit Court share a CEO. Each Court will now have a CEO to manage the
corporate services of the Court.
Item 53, proposed subsection 38A(1A) makes
clear that the administrative affairs of the Family Court for which the
Chief Justice is responsible do not include corporate services. Matters which
constitute corporate services are listed in proposed subsection 38A(1B) and
mirror the definition inserted into proposed subsection 18(1B) of the
Federal Court Act by item 5 of Schedule 1 of the Bill. As
is the case with the Federal Court Act definition, the Attorney-General
may determine matters that are corporate services for the court by legislative
instrument—proposed subsection 38A(5) of the Family Law Act. Under
item 56, the Chief Justice of the Family Court (as proposed in the Bill
for the Chief Justice of the Federal Court), may enter contracts where the
Commonwealth is to pay or receive an amount not exceeding $1,000,000—proposed
subsection 38A(4). Currently subsection 38A(4) limits the amount to
$250,000.
Item 59, proposed section 38BAA parallels proposed
section 18BAA of the Federal Court Act (at item 11 of Schedule 1),
allowing the Chief Justice of the Family Court to make arrangements with other
courts for an officer of another court to perform functions on behalf of the
Family Court.
Proposed subsection 38BAB(1) provides that the
Chief Justice of the Family Court may arrange with the Chief Executive Officer
of a Commonwealth, state or territory agency or another organisation to receive
documents to be lodged or filed in the Court or to perform other non-judicial
functions on behalf of the Court. If such an arrangement under subsection
38BAB(1) exists, the function may be performed despite any other provision in
the Family Law Act or any other law of the Commonwealth—proposed
subsection 38BAB(2). Any function performed on behalf of the Court in
accordance with an arrangement made under subsection 38BAB(1) has effect as if
the function had been performed by the Court—proposed subsection 38BAB(3).
Copies of arrangements made by the Chief Justice with other agencies or
organisations are to be made available to the public—proposed subsection
38BAB(4). This section mirrors existing section 18BA of the Federal
Court Act, which allows the Federal Court to enter into arrangements
with other agencies and organisations.
Part 2—amendments commencing 1
January 2018
The amendments to the Family Law Act made by Part 2
of Schedule 2 will commence on 1 January 2018. The role of Chief Executive
Officer and Principal Registrar of the Family Court will be combined, as is
proposed for the Federal Court. The amendments contained in Part 2 remove
references to the Principal Registrar that indicate it to be a separate role to
that of the Chief Executive Officer. The delayed commencement of this amendment
(on 1 January 2018) allows time to appoint a person with the appropriate
experience and expertise to the new combined role of Chief Executive Officer
and Principal Registrar (proposed section 38C at item 101 of Schedule
2 of the Bill). The Chief Executive Officer will be appointed by
the Governor-General on the nomination of the Chief Justice.
Schedule 3—Federal Circuit Court of
Australia
Schedule 3 establishes a Chief Executive Officer
and Principal Registrar for the Federal Circuit Court. Item 2 inserts
into section 5 of the Federal Circuit Court Act the definition of Chief
Executive Officer for the Federal Circuit Court, which includes the role of
the Principal Registrar of the Federal Circuit Court. Currently the Family
Court CEO, appointed under section 38C of the Family Law Act is also the
CEO of the Federal Circuit Court.
Item 5, proposed subsection 89(2), defines
the administrative affairs of the Court, for which the Chief Judge of
the Federal Circuit Court is responsible, as not including the corporate
services of the Court. The list of matters that comprise corporate services of
the court are set out in proposed subsection 89(2A). The list of matters
is consistent with that for the Federal Court and the Family Court in Schedules
1 and 2.
Chief Executive Officer
Item 9, proposed section 96A, establishes the position
of Federal Circuit Court CEO. The CEO will be appointed by the Governor-General
on nomination by the Chief Judge. Currently, the Family Court and the Federal
Circuit Court share a CEO. Provisions relating to conditions of appointment,
remuneration and so on of the Federal Circuit Court CEO in the Bill are
consistent with those relating to the Family Court CEO, set out in Division 2
of Part IVA of the Family Law Act.
Remuneration
Proposed section 96B provides that the Federal
Circuit Court CEO is to be paid the remuneration and allowances determined by
the Remuneration Tribunal. However if a determination does not exist, the Federal
Circuit Court CEO is to be paid the remuneration and allowances that are
prescribed. Such remuneration and allowances are payable out of money
appropriated by Parliament for the purposes of the Federal Circuit Court.
Term of appointment
The Federal Circuit Court CEO will be appointed for a term
not exceeding five years specified in the instrument of appointment (proposed
section 96C), but is eligible for re-appointment. The Chief Judge
determines the terms and conditions for the CEO that are not provided for in
the Act.
Proposed section 96G provides that the
Governor-General may terminate the appointment of the Federal Circuit
Court CEO for misbehaviour or if the CEO is unable to perform the duties of
office because of physical or mental incapacity. The Governor-General is required
to terminate the appointment of the Federal Circuit Court CEO in the following
instances:
- the
CEO becomes bankrupt, takes steps to take the benefit of any law for the relief
of bankrupt or insolvent debtors, compounds with one or more of his/her
creditors, or makes an assignment of his/her remuneration for the benefit of
one or more of his/her creditors
- the
CEO is absent for 14 consecutive days or for 28 days in any 12 months, except
on a leave of absence
- the
CEO engages in paid employment contrary to section 96F
- the
CEO fails to comply with section 96H without reasonable excuse. Proposed
section 96H concerns the disclosure of all direct and indirect pecuniary
interests and all material personal interests that relate to the affairs of the
Federal Circuit Court or
- the
CEO fails to comply with section 29 of the Public Governance, Performance
and Accountability Act 2013 which also concerns the duty to disclose
interests.
Disclosure of interests
The Federal Circuit Court CEO is required under proposed
section 96H to give written notice to the Chief Judge in relation to all
direct or indirect pecuniary interests that the CEO has or acquires in any
business or body corporate carrying on a business. This also applies to all
material personal interests that relate to the affairs of the Federal Circuit
Court. Proposed subsections 96H(1) and (2) apply in addition to section
29 of the PGPA Act, which also deals with the duty to disclose
interests.
Schedule 4—National Native Title
Tribunal
The National Native Title Tribunal currently operates as a
distinct organisational unit of the Federal Court of Australia. This came about
as a result of an initiative in the 2012-13 Budget where the Government
announced that it would implement the recommendations of the Skehill Review as
they related to the National Native Title Tribunal.[49]
Items 1 to 14 and 16 to 33 amend the Native
Title Act to change references from Registrar of the Federal Court
to the Federal Court Chief Executive Officer. Section 128 of the Native
Title Act concerns the management of the administrative affairs of the
Tribunal. Item 15 repeals and substitutes the notes accompanying this
section. Proposed note 1 makes reference to proposed Part IIB of the Federal
Court Act for the provisions that will relate to the administrative affairs
of the Tribunal (inserted by item 43 of Schedule 1). Proposed note 2
refers to the persons in the Tribunal who, for the purposes of the PGPA Act,
are officials of the listed entity referred to in proposed section 18ZE of the Federal
Court Act (inserted by item 43 of Schedule 1). Proposed note 3 states
that APS employees referred to in subsection 130(3) of the Native Title Act are
part of the statutory agency under section 18ZE of the Federal Court Act, for
the purposes of the Public Service Act.
Schedule 5—Consequential Amendments
Part 1—Family Court Justice, Deputy
Chief Justice and Judge Administrators
Items 1 to 12 amend ten Acts to:
- replace
references to the Chief Judge and Deputy Chief Judge of the Family Court with
references to Chief Justice and Deputy Chief Justice and
- remove
references to the Judge Administrator, a position which is no longer used by
the Family Court. [50]
Part 2—Chief Executive
Officers—amendments commencing 1 July 2016
The majority of amendments in Part 2 update references in
seven Acts relating to the Chief Executive Officer and Principal Registrar of
the Federal Court. Part 2 omits the terms ‘the Registrar, a Deputy Registrar’
and substitutes ‘the Chief Executive Officer and Principal Registrar’ or
similar variations. This is to make the necessary amendments to various Acts to
reflect the retitling of the position of Chief Executive Officer and Principal
Registrar of the Federal Court who will be head of the new single
administrative entity.
Part 3—Chief Executive
Officers—amendments commencing 1 January 2018
As set out above, from 1 January 2018 the roles of CEO and
Principal Registrar in the Family Court will be combined into one role. Part 3
contains consequential amendments to three Acts to reflect this change.
Schedule 6—Application and
transitional provisions
Part 1—Definitions
Part 1 contains definitions relating to the Application
and Transitional provisions for Schedule 6.
Part 2—Names of offices,
appointments
Item 2 relates to the alteration of names of court
offices made by the Bill (including changing the title of the Chief Judge and
Deputy Chief Judge of the Family Court to the Chief Justice and Deputy Chief
Justice; and changing the Registrar of the Federal Court to the Chief Executive
Officer). Subsection 25B(1) of the Acts Interpretation Act 1901 provides
that where the name of a body or office is altered the body or office continues
in existence under its new name so that the identity is not affected.[51]
A reference to the body or office under the former name in any Act, instrument,
award or other industrial determination or industrial agreement, in any other
order, contract, in any pleading or process in connection with legal or other
proceedings will be construed as a reference to the body or office under the
new name. Subsection 25B(1) of the Acts Interpretation Act would apply
automatically, but item 2 of Schedule 6 refers to its application to the
office title changes made by the Bill ‘to avoid doubt’.
Item 3 concerns the continuity of appointment of
the Federal Court Registrar. It provides that if a person is appointed as the
Registrar of the Federal Court under section 18C of the Federal Court Act
and that appointment is in force immediately before Part 1 of Schedule 1 of the
Bill commences (1 July 2016), then the appointment continues in force and may
be dealt with after that time as if the person had been appointed under new section 18C
(inserted by item 14 of Schedule 1). Similar provisions in items 4 and 5
relate to the continuity of appointment of court officers and the engagement of
consultants.
Item 6 provides that if a thing was done by or in
relation to the Principal Registrar of the Family Court, then after the second
commencement time, that is 1 January 2018, it is taken to have been done by the
Family Court CEO and Principal Registrar. Rules may prescribe that subitem 6(1)
does not apply in relation to a specified thing done by or in relation to the
Principal Registrar of the Family Court before the second commencement time.
Part 3—Matters relating to the PGPA
Act
Item 7 provides for the continuity of the listed
entity. The listed entity mentioned in existing section 18BB of the Federal
Court Act continues in existence after the commencement time as the listed
entity mentioned in new section 18ZB of the Federal Court Act (at
item 43 of Schedule 1) so that the identity of the listed entity is not
affected. Amendments proposed by the Bill do not affect the continued operation
or effect after the commencement time of any instruments made before that time
by or on behalf of the listed entity, the accountable authority or any official
of the listed entity. The validity of anything done before the commencement
time by or in relation to the listed entity, the accountable authority or any
official of the listed entity is not affected by the amendments made by the
Bill.
Item 8 provides for continuation of the reporting
requirements of the old listed entity under section 38BAA of the Family Law
Act. The reporting requirements in sections 39, 42 and 46 of the Public
Governance, Performance and Accountability Act 2013 still apply for the
reporting period to 30 June 2015, as if the old listed entity had not ceased to
exist. This means that reports covering the activities of the Family Court and
the Federal Circuit Court up to 30 June 2015 will still need to be prepared in
accordance with the requirements of the PGPA Act.
Part 4—Matters relating to APS
employment
Item 9 concerns the continuity of the Statutory
Agency. The Statutory Agency currently mentioned in section 18Q of the Federal
Court Act continues in existence on or after the commencement time as the
Statutory Agency mentioned in new section 18ZE of the Federal Court Act (at
item 43 of Schedule 1) so that its identity is not affected.
This means that after the commencement time, the continued
operation of any instruments made before that time by or on behalf of the
Statutory Agency, the Agency Head or an APS employee in the Statutory Agency
are not affected. The validity or effect of anything done before the
commencement time is not affected by the amendments made by the Bill.
Item 10 concerns the transfer of APS employees to the
Federal Court statutory agency. An APS employee in the old Statutory Agency moves
to the new Federal Court Statutory Agency at commencement time. Section 72 of
the Public Service Act will not apply to transferred employees under
this item. Section 72 concerns machinery of government changes where the
Commissioner may determine that APS employees can be moved without their
consent and they may become non-APS employees. However, subsection 72(5A) of
the Public Service Act and regulations made under that provision will
apply. This subsection provides that if an APS employee is moved from one agency
to another agency under paragraph 72(1)(a) and certain prescribed circumstances
existed in relation to the person’s employment with the first agency, then the
Commissioner may determine the measures to be taken after the move to the new
agency.[52]
Item 11 concerns the terms and conditions of
employment for transferred employees. This item provides that transferring
employees who are covered by an enterprise agreement immediately before the
transfer continue to be covered by that agreement until a new enterprise
agreement covering employees of the new Federal Court Statutory Agency is made.
Any written policies or guidelines relating to the enterprise agreement that
are in force prior to commencement time will also continue in force as if they
had been made by the Federal Court CEO, until a new agreement comes into
operation.
If a determination made under subsection 24(1) of the Public
Service Act was applied to a transferred employee immediately before
transfer, it continues in effect after transfer as if the determination had
been made by the Federal Court CEO and was applicable to the person’s employment
in the Federal Court Statutory Agency.
Item 12 concerns the terms and conditions of
employment for new employees. The transferred agreement would apply to a new
employee who becomes an APS employee in the new Federal Court Statutory Agency on
or after 1 July 2016, until such time as a new agreement comes into operation that
is made by the Federal Court CEO.
Concluding comments
Although the Bill is generally welcomed by stakeholders in
terms of the savings that will result and the Attorney‑General’s
commitment to re-invest them into the federal court system, there is still
disquiet on the part of the Family Court as to how the merged entity will
operate in practice. It is reported that the ‘Family Court has made it clear it
is still deeply unhappy about being forced to give up control of its corporate
services’.[53]
The Law Council and the Law Society of New South Wales have
also noted their ‘particular concerns:
...about the capacity of the Federal Circuit Court to perform
its important role as an intermediate federal (and federal circuit)
court, and about delays in the Family Court, due to the constraints on the
courts’ financial and judicial resources.[54]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Including
the National Native Title Tribunal. See further below.
[2]. N
Scullion, ‘Second
reading speech: Courts Administration Legislation Amendment Bill 2015’,
Senate, Debates, 2 December 2015, p. 9661, accessed 29 January 2016.
[3]. Federal Court of
Australia Act 1976, accessed 14 December 2015.
[4]. Family Law Act 1975,
accessed 14 December 2015.
[5]. Currently
the Family Court and the Federal Circuit Court share a CEO.
[6]. Federal Circuit Court of
Australia Act 1999, accessed 14 December 2015.
[7]. Native Title Act 1993,
accessed 14 December 2015.
[8]. Australian
Government, ‘Streamlining and improving the sustainability of courts’ in ‘Part 2: Expense measures’, Budget measures:
budget paper no. 2: 2015–16, accessed 14 December 2015.
[9]. N
Scullion, ‘Second
reading speech: Courts Administration Legislation Amendment Bill 2015’, Senate, Debates,
2 December 2015, p. 9661, accessed 19 January 2016.
[10]. Ibid.
[11]. N
Berkovic, ‘Family
law crisis ‘put kids at risk’’, The Australian, 3 December 2015, p.
3, accessed 29 January 2016.
[12]. Ibid.
[13]. G
Brandis (Attorney-General), Putting
federal courts on a sustainable footing, media release, 3 December 2015, accessed 29
January 2016.
[14]. Terms
of reference, in S Skehill, Strategic
review of small and medium agencies in the Attorney-General’s Portfolio: report
to the Australian Government, (Skehill Review), report prepared for the
Department of Finance and Deregulation (DoF), DoF, Canberra, January 2012, p.
vii, accessed 29 January 2016.
[15]. Ibid.,
pp. 37–38. The Family Law Courts Advisory Group also expanded its membership to
take account of the integrated management of the two courts.
[16]. Ibid.,
p. 37.
[17]. N
Roxon (Attorney-General), Review
of Attorney-General portfolio agencies released, media release, 8
December 2012, accessed 29 January 2016.
[18]. Attorney-General’s
Department (AGD), Annual
report 2014–15, AGD, Canberra, 2015, pp. 23–24, accessed
29 January 2016.
[19]. National
Commission of Audit (NCoA), Towards responsible government: report
of Phase One, NCoA, Canberra, February 2014, p. 213.
[20]. Explanatory
Memorandum, op. cit., p. 7.
[21]. Law
Council of Australia, Law
Council calls on Government to release Federal Court funding report,
media release, 2 September 2014, accessed 29 January 2016.
[22]. Ibid.
[23]. Ibid.
[24]. Senate
Committee on Legal and Constitutional Affairs, Inquiry
into the Courts Administration Legislation Amendment Bill 2015,
accessed 1 February 2016.
[25]. Family
Court of Australia, Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Courts
Administration Legislation Amendment Bill 2015, pp. 2–3, accessed 12
January 2016.
[26]. Ibid.
[27]. Law
Council of Australia, Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Courts Administration Legislation Amendment Bill 2015, p. 2, accessed 21
January 2016.
[28]. Ibid.,
p. 3.
[29]. Explanatory
Memorandum, op. cit., p. 3.
[30]. G
Brandis (Attorney-General), Putting
federal courts on a sustainable footing, op. cit.
[31]. The
Statement of Compatibility with Human Rights can be found at pages 4–6 of the
Explanatory Memorandum to the Bill.
[32]. Public Governance,
Performance and Accountability Act 2013, accessed 15 December 2015.
[33]. Courts
Administration Legislation Amendment Bill 2015, Schedule 1, item
5, accessed 15 December 2015.
[34]. Proposed
section 18BAA of the Federal Court Act, at item 11 of Schedule
1 of the Courts Administration Legislation Amendment Bill 2015.
[35]. Currently
the Family Court and the Federal Circuit Court share a CEO. Each court will now
have its own CEO.
[36]. Family
Court of Australia, Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into
Courts Administration Legislation Amendment Bill 2015, accessed 28 January
2016.
[37]. N
Berkovic, ‘Family
law crisis ‘put kids at risk’’, op. cit.
[38]. A
listed entity is a non-corporate Commonwealth entity prescribed by the PGPA
Act or the PGPA Rules. All non-corporate Commonwealth entities are “listed
entities” except for Departments of State and Parliamentary Departments:
Source: DoF, ‘Flipchart of
Commonwealth Entities and Companies’, DoF website, accessed 28 January 2016.
[39]. The
list refers to the CEOs of the courts, officers of the various courts and staff
of the registries of the courts, the Native Title Registrar, Deputy Registrars
of the National Native Title Tribunal and staff of the Tribunal as well as
consultants engaged for the Tribunal.
[40]. Public Governance,
Performance and Accountability Act 2013. See also Australian Government
Solicitor (AGS), ‘Public
Governance, Performance and Accountability Act 2013—what are the key
changes for FMA Act agencies?’, factsheet, 35, AGS, October 2013, accessed
21 December 2015.
[41]. ‘Administrative
affairs’ are distinct from the ‘corporate services’ listed in proposed
section 18A of the Federal Court Act, at item 5 of
Schedule 1 of the Bill.
[42]. Explanatory
Memorandum, Courts Administration Legislation Amendment Bill 2015, p. 23.
[43]. Listed
entities are set out in proposed section 18ZB of the Federal Court
Act, at item 43 of Schedule 1 of the Bill.
[44]. Explanatory
Memorandum, op. cit., p. 24.
[45]. Ibid.
[46]. Ibid.
[47]. Public Service Act 1999,
accessed 1 February 2016.
[48]. Explanatory
Memorandum, op. cit., p. 25.
[49]. Courts and Tribunals
Legislation Amendment (Administration) Act 2013, accessed 3 February
2016. N Roxon (Attorney-General), Review
of Attorney-General portfolio agencies released, media release, 8
December 2012.
[50]. Explanatory
Memorandum, op. cit., p. 53.
[51]. Acts Interpretation Act
1901, accessed 2 February 2016.
[52]. Regulation
8.3 of the Public
Service Regulations 1999 (accessed 2 February 2016) sets out the relevant
prescribed circumstances, including that the person has been suspended from
duties in relation to an alleged breach of the Public Service Code of Conduct.
[53]. N
Berkovic, ‘Family
Court chief questions takeover plan’, The Australian, 22 January
2016, p. 23, accessed 29 January 2016.
[54]. Law
Council of Australia, Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Courts Administration Legislation Amendment Bill 2015, p. 5, accessed 22
January 2016.
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