House of Representatives Speech- Federal Courts Legislation Amendment Bill 2014

The Federal Courts Legislation Amendment Bill 2014 implements several minor changes to the Federal Court of Australia Act and the Federal Circuit Court of Australia Act. Supporting the federal courts and, of course, also now the federal administrative tribunals is an important responsibility of the Commonwealth government and particularly of the Commonwealth Attorney-General. It was not always so. It is difficult to imagine now that the Commonwealth had no court of general federal jurisdiction until well into the seventh decade after Federation, when the Federal Court of Australia first sat in 1977. For more than half of the life of our nation we made do with a unique innovation of the Australian Constitution: the 'autochthonous expedient'—the ability of the Commonwealth Parliament to invest federal jurisdiction in the courts of the states.

The Federal Courts Legislation Amendment Bill 2014 implements several minor changes to the Federal Court of Australia Act and the Federal Circuit Court of Australia Act. Supporting the federal courts and, of course, also now the federal administrative tribunals is an important responsibility of the Commonwealth government and particularly of the Commonwealth Attorney-General. It was not always so. It is difficult to imagine now that the Commonwealth had no court of general federal jurisdiction until well into the seventh decade after Federation, when the Federal Court of Australia first sat in 1977. For more than half of the life of our nation we made do with a unique innovation of the Australian Constitution: the 'autochthonous expedient'—the ability of the Commonwealth Parliament to invest federal jurisdiction in the courts of the states.

Twenty years before the Federal Court first sat—in 1957—a young, ambitious federal backbencher named Gough Whitlam had delivered a lecture at the University of Melbourne calling for the establishment of a federal circuit court. As the Hon. Michael Black AC, a long-time Chief Justice of the Federal Court, has noted:

This was one of the earliest, if not the first, public proposals for a federal superior court of broad, non-specialist jurisdiction.

By the time Whitlam had come to leadership of the Labor Party in the late 1960s, the need for such a court was increasingly clear. The High Court groaned under its caseload as both the nation's constitutional court and its only court of original federal jurisdiction. The Liberal Attorney-General, Nigel Bowen QC, floated the creation of a federal court but did not proceed with the proposal.

When Whitlam took power in 1972, his idea, first mooted all those years before, was taken up with some fervour by Attorney-General Lionel Murphy. The Labor government introduced legislation in each of its parliamentary terms to create a 'Superior Court of Australia'. The Superior Court of Australia was to be a broad federal court, one of whose divisions would deal with family law. However, the Superior Court of Australia Bill was blocked in the Senate by the conservative opposition, who were concerned that the court would undermine the prestige of the state courts—a concern which would prove unfounded. The Family Law Act, which was passed in the turbulent last months of the Whitlam government, would of course create the Family Court of Australia.

The following year the incoming Liberal government passed legislation creating the Federal Court of Australia—a court with a comparatively narrow jurisdiction. Through both the express expansion of its jurisdiction and the growing importance of a range of areas of Commonwealth law, the Federal Court of Australia has now grown into a court with a very broad and significant range of responsibilities—though I wonder if there are not some federal judges who would have preferred the slightly grander title Lionel Murphy would have given it.

The Federal Court was joined in 1999 by the Federal Magistrates Court. Chief Justice French has written that the history of that court mirrors that of the Federal Court:

The establishment of each of the courts had powerful proponents and powerful opponents. Their initial jurisdictions were relatively narrow. But, once established, each grew in reputation and in jurisdiction.

The Federal Magistrates Court was reconstituted as the Federal Circuit Court in 2013 by the most recent Labor government. That government decided that the change to the name of the court and its judges was warranted to reflect the evolving role of the court and its importance in the federal judicial system. Chief Justice French said of this decision:

The renaming of the Federal Magistrates Court as the Federal Circuit Court is more than merely cosmetic. Although predictions about institutional development are always hazardous, the future of the Federal Circuit Court as a national civil trial court exercising federal jurisdiction seems assured.

I respectfully agree with the Chief Justice. Indeed, last year I had the honour of appearing before a joint sitting of all of the Federal Circuit Court judges bar two, as I recall, on the occasion of the renaming of the Federal Magistrates Court to the Federal Circuit Court.

The Federal Circuit Court and the Federal Court now each have a broad and varied jurisdiction. They have earned reputations for their high quality and efficient management. These federal courts have made a great contribution to our national life. As with so many of Gough Whitlam's ideas—and indeed also Lionel Murphy's—it is difficult to imagine what our nation would look like without them. This bill is a very minor addition to that legacy. The bill will give the Federal Circuit Court jurisdiction over certain tenancy disputes involving the Commonwealth. The bill will clarify the ability to use reasonable force in entering premises to execute an arrest warrant, which is unclear under the legislation as it presently stands. The bill tightens provisions intended to limit appeals from minor interlocutory decisions in the federal courts. A range of minor technical amendments are also made to each act to improve clarity and drafting. Labor supports this bill, which will make a number of minor but worthy improvements to our federal court system.

At this time, however, there are, I regret to say, weightier concerns with the federal courts. I hold grave concerns about funding decisions the government has foreshadowed concerning the courts that it oversees. The government has refused my call for it to release the KPMG report into the funding and performance of those courts. Supporting the federal courts is, as I said, an important responsibility of the Commonwealth government and particularly of the Commonwealth Attorney-General. The proper funding of those courts goes to the core of that responsibility. I call on the government to be very clear about how it will proceed to support our federal courts into the future. I commend this bill to the House.