Reform

FCFCA Bills Committee Report released – not very good…

I have just finished reading the 76 page Report from the Senate Standing Committee on Legal and Constitutional Affairs (the Committee) enquiry into the Federal Circuit and Family Court of Australia Bills (the FCFC Bills).

Released two months earlier than instructed to by the Senate, the Report is, as expected, in support of the Bills, albeit with one substantial and one minor amendment. In summary, the recommendations are:

1. More money for the Courts;
2. A big, fat “NO” to moving family law appeals to the Federal Court;
3. Tweaking the Division 2 judges’ qualifications to include suitable personality;
4. Immediate replacement of judges to vacant positions;
5. If these are done, then pass the Bills.

What jumps out immediately is that recommendations 1 and 4 are entirely peripheral to the Bills and are things which should have happened already in the normal course of the business of adequately maintaining the Courts.

Recommendation 1 is interesting to consider in context. Persistent underfunding is a fundamental contributor to the current state of dysfunction prevalent in the Courts dealing with family law matters. The more cynical might suggest that such underfunding may have been a strategic move to bring about an “urgent need for structural reform” that has allegedly triggered the Bills and justified the extraordinary haste with which the Bills have been pushed through.

The Committee’s recommendation that more funding be provided in addition to the budget allocation explained in paragraph 15 of the Explanatory Memorandum (EM) to the Bills – a paltry $4 million – is, with respect, a no-brainer.

It is worth noting here that paragraph 16 of the EM touts proudly that the amalgamation of the Courts will result in “efficiencies to the courts of $3.0 million over the forward estimates” (three years) and that “These efficiencies will be reinvested in the courts to further enhance their capacity to provide services”. What the? Where’s the logic in that? Let’s see: spend $4 million this year to save $3 million over three years and then apply this generous ocean of funding to provide more services. An illogical and self-defeating proposition.

Recommendation 2 is most welcome and stands alone as the only concession to common sense in the Committee’s report. The notion of separating out the appeals from the specialised expertise of the Family Court and instead vesting it in the Federal Court with its generalised jurisdiction made absolutely no sense on any level. It must be remembered that family law jurisprudence is largely determined at the appeals level with precedents being binding on the lower Courts (or proposed Divisions). It’s absurd to suggest that this vital purpose be diverted to a generalist judiciary.

Recommendation 3 simply tweaks the wording describing the characteristics required for judges appointed to the FCFC Division 2 to include a reference to having an “appropriate personality” to deal with matters that come before them, including family law. Of course this is desirable, but begs the question as to why it was omitted in the first place.

Recommendation 4 regarding filling the two current judicial vacancies in the Family Court has already been pre-empted by the Government with the appointment of Judges Williams and Henderson commencing a week ago on 8 February 2019. While these appointments to the Family Court are very welcome, they come at a cost to the Federal Circuit Court bench from which they were both drawn. No mention has been made of filling the void thereby created in the Federal Circuit Court.

Recommendation 5 is simply that, with the adoption of the above four recommendations, the Bills should be passed, notwithstanding that several huge issues raised remain unresolved…

Unintended Consequences
In fact, one of these unresolved issues is the likelihood of unintended consequences for the Family Court of Western Australia (FCWA). Strangely, this issue appears nestled neatly between recommendations 4 and 5 in the section of the report entitled “Committee view and recommendations” (starts on page 61) where issues are summarised and followed by a recommendation. Despite a neat little summation of the problem and expressing a need for further consideration to be given, no recommendation ensues on this issue.

Rules of Court
And what of the profound concerns articulated in the Report with regard to the Rules of Court to be formulated by a single person – currently Justice Alstergren who as of 10 December 2018, holds the dual commission as Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court (which he has held since October 2017).

The creation of the Rules of Court is no mere administrative trifle either, and I would argue that these ‘harmonised’ rules will have a more significant effect for all users of the Courts than the restructure itself. Furthermore, the ‘harmonisation’ of the Rules can happen immediately and without resort to legislation. In any event, such fundamental mechanisms of the Court should not be entrusted to any one person, no matter how competent or honourable.

Dissenting views
The Labor Senators’ interim dissenting report (pages 65 and 66) give a refreshingly honest overview of the unseemly haste and disregard for due process that has accompanied the Bills’ progress through the parliament. Although brief, it concluded that “Reform should be undertaken with great care. It should be well considered and it should not be rushed”. I couldn’t agree more. It also criticises the tabling of the Report at this time (two months early) and promises a “full dissenting report from the Labor Senators” to be tabled ASAP.

These comments would appear to indicate that, like the rest of the processes accompanying the progression of these Bills, the production of the Report has been rushed by the Government Senators and insufficient time has been allowed for the dissenting view to be presented within it.

Similarly, the “Additional comments by Senator Rex Patrick” (pages 67 and 68) are damning of the Committee’s apparent disregard for the substantive problems that remain unresolved in the Bills. “I have never observed or sat on an inquiry where there has been such an overwhelming view amongst the majority of submitters and witnesses that the proposed legislation will not achieve the legislation’s stated objectives.”

So What Now?
A look through the Senate Notice Paper of 14 February 2019 shows that the Report was not tabled that day and is due to be presented to the Senate and the 2nd reading debate is to take place on 15 April 2019 (the date the Senate requested the Report be tabled on).

You’ve got to wonder why the Report was delivered so early then as there is no opportunity for the Senate to consider it prior to mid April – just after the early Budget and presumably just before the next Federal election.

Although there is no Constitutional imperative for House of Representatives and half-Senate elections to occur simultaneously, they generally do to save on costs. The latest date for a half-Senate election is 18 May 2019 (the date that three year terms expire). This date allows for the maximum 100 days after the issue of the writs on 22 March 2019 and their return on 30 June 2019.

This would mean that from the dissolution of Parliament on 12 March 2019, the Bills could not be passed anyway as when an election is called, the Parliament goes into ‘caretaker mode’ and all business before the House of Representatives ceases and it can only attend to routine administration.

And what of the time required for the necessary amendments to be drafted, introduced, debated and passed in the House?

So, unless the Bills are pushed through the Senate this coming week from 18 to 21 February 2019, they may never come to pass at all as there are no sitting days from 22 February until 2 April 2019 and this date is set aside for the Budget. Should the coalition lose the election (quite likely given their current dysfunctional state), the Labor and some crossbench opposition to the Bills might see them shelved.

Watch this space people…