CHAPTER 2
KEY ISSUES
2.1
Submitters and witnesses were generally supportive of the amendments
proposed by the Bill.
Schedule 1 of the Bill – National Native Title Tribunal amendments
2.2
Schedule 1 of the Bill sets out the proposed changes to the National
Native Title Tribunal (NNTT). The amendments proposed in Schedule 1 were
announced in the 2012–13 Federal Budget and are designed to:
- transfer the NNTT's native title claims mediation functions and
resources to the Federal Court; and
- consolidate the corporate service areas of the two agencies.[1]
2.3
The transfer of the NNTT's native title claims mediation functions build
on previous reforms, introduced in 2009, that were made to:
- give the Federal Court greater control of native title mediation;
and
- refocus the NNTT on its 'future act'[2]
functions and registration role.[3]
2.4
Mr Warwick Soden, Registrar and Chief Executive Officer of the Federal
Court of Australia, advised that the changes 'will formally transfer all of the
staff of the tribunal to the Federal Court' and that the 'merging of the
corporate function' will enable efficiencies.[4]
Providing certainty
2.5
A representative of the Attorney-General's Department (Department)
explained that the amendments set out in Schedule 1 of the Bill 'remove legal
risk and provide clarity for agencies and stakeholders':
Schedule 1 of the bill finalises the implementation of the
native title institutional reforms which commenced with amendments to the
Financial Management and Accountability Regulations 1997 from 1 July last year.
It folds the tribunal into the Federal Court statutory agency and makes
consequential amendments to the governance, financial and annual reporting
frameworks of the consolidated entity. The amendments remove legal risk and
provide clarity for agencies and stakeholders. These amendments will not only
generate savings but also result in a better alignment and allocation of
functions and a clearer focus on increasing the rate of claims resolution.
These legislative amendments are supported by administrative arrangements such
as a memorandum of understanding agreed between the agencies that will enable
the tribunal to continue to perform its functions in a way that is consistent
with its status as an independent statutory authority. The Native Title
Registrar will continue to exercise powers relating to the day-to-day
management of the administrative affairs of the tribunal and determining
staffing arrangements within an agreed budget. In this way, the day-to-day
operation of the tribunal will remain largely unchanged.[5]
2.6
In its submission to the inquiry, the Federal Court of Australia
suggested that if the Bill was not passed in its current form, 'legal and
administrative uncertainty' may result.[6]
Cost savings
2.7
It is expected that the proposed changes will result in cost savings of
$4.75 million per year from 2012-13 – a total of $19 million over the four
year forward estimates.[7]
The Skehill Review recommended that any administrative savings from reform of
the NNTT be reinvested into 'native title mediation, reallocated to other
priorities in the native title system or harvested to the Budget'.[8]
The Explanatory Memorandum (EM) to the Bill states that the cost savings
achieved through the amendments will be reinvested in the Stronger Futures
in the Northern Territory initiative.[9]
2.8
Mr Soden explained that the $19 million over four years 'is coming from
the savings achieved with the reduced number of people as a result of the merger
of the corporate functions'.[10]
2.9
The Deputy Registrar of the Federal Court, Ms Louise Anderson, further advised
the committee:
...there have been 23 redundancies in the National Native Title
Tribunal, which have contributed to those savings...And there were other savings
in respect of the court taking over–for example, the corporate functions. So
there is one system for managing human resource[s]–applications for leave et
cetera. There were consequential savings from that, but predominantly it was
from staff.[11]
Support for Schedule 1 of the Bill
2.10
In respect of the proposals set out in Schedule 1 of the Bill, the Australian
Institute of Aboriginal and Torres Strait Islander Studies offered 'broad
support' for the amendments which bring into effect reforms to the operation of
the NNTT and the Federal Court announced in June 2012.[12]
2.11
The National Native Title Council (Native Title Council) also informed
the committee that it regards the amendments as administrative and that the
changes will not affect the ability of the NNTT to carry out its functions:
...[the changes] do not intentionally impede the NNTT from
properly carrying out its administrative functions...The proposed amendments to
the [Native Title Act] seem to be coherent with the legislated objective of the
NNTT, particularly in furtherance of the NNTT's economic efficiency.[13]
Engaging staff
2.12
The Native Title Council did however raise a concern that the transfer
of certain administrative responsibilities, particularly in relation to
engaging staff and consultants, from the NNTT President to the Registrar of the
Federal Court, could result in the engagement of staff and consultants without
the requisite cultural knowledge and experience.[14]
2.13
Mr Soden responded to these concerns:
Prior to 2009, then and now, the court has been and still is
very fortunate in acquiring and retaining people with a deep understanding of
the native title jurisdiction and related issues. There are native title
specialists engaged by the court across the country and there are judges with
special responsibility for managing the native title cases in their state.
These people work very closely together managing workload and individual cases.[15]
2.14
Mr Soden sought to assure the committee that the concerns raised by the
Native Title Council would not be realised:
I mention these issues as I note some continuing concerns in
the submissions received by the committee. Those concerns include the
suggestion that, by there being a transfer of financial and other
administrative responsibilities from the tribunal to the court, and to me in
particular, there might be an adverse impact on the role of the tribunal in
their future act and registration responsibilities. I assure the committee that
is not going to happen.[16]
2.15
A departmental officer also responded to the concerns raised by the
Native Title Council in respect of engaging staff:
[W]e do not consider that the bill will change the current
practice of the tribunal at all in this regard. We think what the Native Title
Council has raised is, with the greatest of respect, a misreading of the bill.
We think that the decisions to engage consultants in this regard will operate,
because of the delegations that will be provided from the Registrar of the
Federal Court to the Native Title Registrar, pretty much the way they do now.
Indeed, as Mr Soden has indicated to you previously in his presentation, even
if there were matters where there were consultants required to be appointed by
the Federal Court, the Federal Court is clearly aware of the sensitivities that
are required in those appointments so the government does not believe, with the
greatest of respect, that there is a significant issue here.[17]
Schedule 2 of the Bill – Family Court and Federal Magistrates Court amendments
2.16
Schedule 2 sets out the proposed changes to the Family Court and the
Federal Magistrates Court. A departmental representative explained that the
changes are necessary to support arrangements that have been operating since
2009:
Schedule 2 of the bill amends the Family Law Act 1975
and the Federal Magistrates Act 1999 to ensure that these [A]cts are
compatible with the courts operating under shared administration with a single
chief executive officer. The Family Court and the Federal Magistrates Court
have been operating under shared administration, including a single chief
executive officer, since 2009.[18]
2.17
The officer further informed the committee that the joint administrative
arrangements, operating since 2009, were found by the Skehill Report to have
been a 'genuine success' and that it was on that basis that the Skehill Report
recommended that the 'shared administration arrangements be formalised'.[19]
2.18
The Department noted that the Bill, which formalises these arrangements,
does not affect the jurisdiction of either court and will provide legislative
certainty:
The Family Court and the Federal Magistrates Court will be
prescribed as a single agency for the purposes of the Financial Management
and Accountability Act 1997, with a single chief executive officer. The
bill does not affect the jurisdiction of either court or the judicial work of
either court and does not address broader issues of court structure.
Formalising the courts' shared administration arrangements will provide the
courts with certainty and will allow them to work towards further efficiencies
and improved administration into the future.[20]
Support for Schedule 2 of the Bill
2.19
The Chief Justice of the Family Court of Australia, the Hon. Diana Bryant AO
(Chief Justice), expressed general support for the intent of the Bill 'to
facilitate the merger of the administrative functions of those two courts'.[21]
Definitions
2.20
The Chief Justice did however raise particular concerns in respect of
the nomenclature and definitions of 'Chief Judge' and 'Chief Judge of the Federal
Circuit Court of Australia'.[22]
2.21
The Chief Justice's primary concern related to an inconsistency between
the Family Law Act 1975 and the Federal Court of Australia
Act 1976 and the fact that the reference in the Bill to the head of
the Family Court as the 'Chief Judge' does not accurately reflect that the
Family Court is the superior court of record.[23]
2.22
In response to these matters, a representative from the Department
advised the committee that the Chief Justice's suggestions were under
consideration:
[T]his bill was purely about implementing the Skehill
reforms. So the concerns raised by the Chief Justice are now with government to
consider. I think it was just a matter of this not being seen as the legislative
vehicle to make that particular change.[24]
2.23
The officer further explained that the Chief Justice's concerns are best
addressed separately given the timeframes involved:
It is a separate issue...to the Skehill matter...it probably
arises more out of the renaming of the Federal Magistrates Court to the Federal
Circuit Court, with the Chief Federal Magistrate to be renamed as a chief
judge. But the Family Court is the superior court and, whilst it does not say
it in every provision, it still makes it clear that the Chief Judge of the
Family Court is to be known as the Chief Justice of the Family Court...We see 1
July as a fairly critical date for the implementation of this particular bill,
so we need to work through all the changes and choose another vehicle[.][25]
Concerns raised by the Law Council
of Australia
2.24
The Law Council of Australia (Law Council) raised concerns about
Schedule 2 of the Bill in relation to the 'policy decision by the
Government to maintain two separate Courts exercising family law jurisdiction'.[26]
The Law Council expressed the view that this approach is 'fundamentally flawed'.[27]
2.25
The Department responded to this assertion, advising the committee that
the government has decided that it is not appropriate to address this particular
issue in the Bill, but that it is willing to consider the matter further:
It was government policy to have the Family Court and the
Federal Magistrates Court restructured so the Federal Magistrates Court would
be folded into the Family Court and a separate Federal Magistrates Court
exercising general law jurisdiction would still be in existence. Ultimately the
government decided not to proceed with the restructure. The restructure
involved two elements. There was the element of the desirability of having a
one-stop shop for family law applicants to access the Family Court and to
reduce confusion. It was also about efficiencies, savings and reducing the
duplication of work. Mr Skehill was satisfied and recommended it to the
government. The government was satisfied that in relation to the efficiencies
side of things there was no need to move to a single court and that the shared
arrangements was a genuine success...
The Attorney also indicated that, as part of that, the
announcement would provide the courts necessary certainty, but the government
will also look at the issue of providing greater certainty for applicants as
well. That is a key initiative. That is not part of this bill. This bill is
purely about implementing the Skehill recommendations, but it is certainly
something the [then] Attorney has announced that she is going to look at and it
is work that is in progress.[28]
Ensuring cooperation
2.26
The Law Council also raised concerns that the new arrangements are
dependent on cooperative personal and professional relationships of the
incumbents, which cannot always be guaranteed. Additionally, having only a
single Chief Executive Officer reporting to two heads of the different
jurisdictions may cause conflicts and inconsistency.[29]
2.27
In response to these assertions, a departmental representative informed
the committee:
The government acknowledges the close working relationship
between Chief Justice Bryant and Chief Federal Magistrate Pascoe. But it is
also...the government's expectation that the heads of jurisdiction would be able
to work together cooperatively notwithstanding who the respective Chief Justice
and—with the Federal Circuit Court legislation to come into effect in coming
months—Chief Judge of the Federal Circuit Court are. As part of the Skehill
recommendations, as well as his recommending that this bill be legislated to
have the shared administration arrangements formalised between the Family Court
and the Federal Magistrates Court, there was a recommendation for the heads of
jurisdiction to come together as a consultative committee. That was really from
a proposal brought forward by the heads of jurisdiction from the Federal Court,
the Family Court and the Federal Magistrates Court, recognising the need to
work whole-of-system and to work collegiately in a challenging fiscal
environment.[30]
Committee comment
2.28
The committee acknowledges that the amendments set out in the Bill
merely formalise administrative arrangements that have been operating since
2009. The committee notes that the Skehill Review considered these arrangements
and recommended that they be formalised. The Bill achieves that outcome.
2.29
The committee takes the view that passage of the Bill will provide
certainty for both agencies and stakeholders. The committee endorses the
amendments set out in the Bill and considers they will achieve the stated purpose
of enabling the agencies to implement savings, and to operate more efficiently
and effectively into the future.
Recommendation 1
2.30
The committee recommends that the Bill be passed.
Senator Trish Crossin
Chair
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