Chief John Pascoe AO - 1 May 2013 Sydney

Transcript of Proceedings


9.32 AM, WEDNESDAY, 1 MAY 2013

HIS HONOUR: Mr West, I invite you to do the welcome to country.

MR WEST: Sorry about that. Brothers and sisters, your Honours, you are gathered here today on the land of the Gadigal People of Eora Nation, one of 29 clans of Eora Nation. Across there we have the suburb of Cammeray, that’s obviously named after the Cammeraygal People over there. If you go towards the heads there you have Kay-e-my and Cannalgal, two of the three clans of Manly, Birrabirragal People on the south side. We also have Gadigal on the northern side where the National Park is. The other way if you head west you have Wangal. Obviously Bennelong was a Wangal man where the Opera House now resides named after him, land he was granted. It was a big ..... there down at the Opera House. It is important to understand the rich history of this land.

As all Australians your history does just not go back 230-odd years ago. It goes back 60,000 years. If we are to have reconciliation it is about education and understanding our shared history both the good and the bad. I’ve bought with me here today as a gift a message stick. A message stick – traditionally the person would be an emissary or ambassador. They would go across to different clans and tribes and nations. They would deliver – it would be a prompt to deliver a consistent message which may be about a dispute or a corroboree. The message on here is about one community, one mob, one planet and one humanity that we are all brothers and sisters. Also we have the scales of justice on here about honour, about truth. It is to use as a prompt within the Australian Federal Court Circuit Court to think about the interaction of law between Australian society and Aboriginal People.

We have things on here like L-o-r-e law and l-a-w. We have about land and the connection. Peers which is very important in the legal fraternity, about regional, remote and urban, all the diversity there is, about connection and understanding we are all connected and about caring, sharing and family which you deal with, about terra nullius and today’s date Mabo, Wik, 1788, 1901. These are all important things that we have a shared history with. I would also like to acknowledge and pay respects not only to Gadigal Eora on behalf of all us but pay respects to all Aboriginal and Torres Strait Islander traditional owners, elders and custodians of the past, present and future and any Aboriginal and Torres Strait Islander people in attendance here today for looking after the land, the culture, the spirit of the country that we now all enjoy as Australians.

I would also like to pay respects to all our ancestors who have gone before us who have handed down our traditions both in our society and our families and our communities, and as leaders of community it’s important that you do make the connection with community. You interact with a lot of Aboriginal People and Torres Strait Islander People in the work that you do and it’s important that we wanted to highlight that you are on a journey and we are on a journey as humanity and concentric circles are places, dots of time. We wanted to get everyone to think. This was created by Graham Toomey, Director of Boomalli Arts, the oldest Aboriginal artist who is sitting in the audience here and myself. It’s a tool for education and bringing people together.

Reconciliation is not about – not just about social inclusion and coming together. It is about all of us working together because we are as Australians against the rest of the world when we think about it. That if we are going to succeed both economically and in society and to be great leaders – we are a good country but we can be a great country and coming together is what it is all about. So if there is any of my Aboriginal and Torres Strait Islander brothers and sisters out there we warmly welcome you from the land clan tribe and nation you come from, and to all our brothers and sisters here we warmly welcome you from the land, the family, the neighbourhood and the community you come from to the ancestral and the Gadigal People, the Eora land, the Aboriginal land. It was always was, is and will be.

We want you to have a safe stay on this land and a safe journey home to your family and loved ones and let us all put our hands out in reconciliation and sit down, have a yarn, have a discussion over the next few years. May I give this to the court officer from Graham and myself as a – as I said as a tool for discussion and reconciliation and we present it to the Circuit Court. Thank you. So we welcome you here. Thank you.

HIS HONOUR: Thank you, Mr West. The message stick will have pride of place in the Court because it symbolises reconciliation and the need for all Australians to come together at all times and also reminds us of the diversity of our community. Attorney, I now invite you to address the court.

MR DREYFUS: May it please the court. I acknowledge the traditional owners of the land on which we meet, pay my respects to their elders past and present and extend that respect to all other indigenous people here today. I also formally acknowledge the Chief Judge and judges of the Federal Circuit Court of Australia. This is a significant event in the court’s history and I appreciate this opportunity to share this occasion with you. One year ago my predecessor, Nicola Roxon spoke to the Federal Magistrates Court plenary to outline her aims for the court. I am pleased to be here today to say that the aims she outlined have been met. The court retains its separate and distinct identity from the Family Court. Court administrative structures have been formalised and streamlined as endorsed by Stephen Skehill’s report.

The court has been put on a stronger financial footing following changes to court fee levels across the Federal system. The Heads of Jurisdiction Consultative Committee is operational and providing strong advice to government as well as sharing ideas between courts. Foremost among the former Attorney-General’s aims, of course, was to the change the title of the court and that of its judicial officers to more accurately reflect its role and status in the Federal judicial system. So today I formally offer my congratulations to the court and its judges on the commencement of its new name, the Federal Circuit Court of Australia and the new titles of Chief Judge, and Judge. It was a particularly pleasing moment when I was able to first use these titles when appearing at the ceremonial swearing in of Judge Small last week.

When the Federal Magistrates Court commenced operation in 2000 its mandate was to deliver a low cost, flexible and accessible forum to resolve less complex matters as an alternative to litigation in the Federal and Family Courts. The court has proved singularly successful in this task. From its first days the court has actively pursued ways to provide court services to communities that experience difficulties in accessing justice services whether that be due to socio-economic circumstances, remoteness or lack of other community facilities. Today, the court remains committed to improving access to court services for people living outside the larger metropolitan areas and it continues to meet a clear need in the community for people to be able to access a court service near to where they live and work in places like Broken Hill and Bundaberg, Ballarat, and Burnie not just in the capital cities.

The court is now entering a new chapter in its history. A time where we will see the court fulfil its potential as a truly federal court, recognised for its circuit and trial work and confident in its identity, jurisdiction and role. While I rarely like to quote The Australian I will do so now to correct any inaccuracy. On the morning of 12 April that journal stated and I quote:

Through the magic of legislation the court’s 61 judicial officers went to bed last night as magistrates and awoke this morning as judges.

We all know, of course, that this is an achievement that has not magically occurred overnight. Rather, it has been the focus of considerable time, effort and planning to ensure that all aspects of the court’s business enjoyed a smooth transition. I thank court officers and officials for working so closely and cooperatively with officers from my department through the necessary changes to legislation, regulations and administration over the past year. Your new title of judge simply recognises that you have always been members of the judiciary of a court created by parliament under chapter 3 of the constitution. As such the character and expectations associated with your role remain the same. Judicial office, regardless of the title attached, is a position of significant public trust and responsibility. I cannot overstate how critical public confidence in judges and the administration of justice is to the democratic system of government that we enjoy.

As Justice Michael Kirby said in one of his multitude of speeches and I quote:

To be a member of a court that is uncorrupted, fiercely independent, learned, industrious and widely respected is a great vocation. It involves years of devoted study, long hours of relentless concentration, great patience, an inbuilt sense of courtesy, devotion to the law and to finding just outcomes wherever possible.

In accepting the task Michael Kirby so eloquently described the judges of the Federal Circuit Court form an integral part of the justice system in Australia. The commencement of a new name brings the opportunity for a rejuvenated sense of identify and a confident examination of the court’s direction. With this mind I would like to share my thoughts about how the court can meet its present and future challenges. Ensuring a professional, independent and highly regarded judiciary is inextricably linked with the court’s role as a truly modern, responsive federal court.

The government has actively undertaken steps since the last plenary to support the court’s judicial officers to maintain a high calibre of professionalism. To that end you will be aware that the National Judicial College of Australia has reversed its policy to exclude judges of this court from its national judicial orientation program.

I understand that new members of this court are already participating in the program which will, no doubt, assist them to reach their full potential. As you are aware salaries and allowances for judicial officers across all federal courts are determined by the independent Remuneration Tribunal and are subject to annual review. I have communicated my support for a specific review of Federal Circuit Court judges’ remuneration and entitlements to the Remuneration Tribunal President outside this standard process. I will reiterate that view when I meet with the tribunal next week. Such a review would be beneficial now that the government has resolved the uncertainty about the court’s ongoing role and functions. While it is not the government’s intent that the usual range of factors considered by the tribunal in making its determinations would be expanded it is generally accepted that the complexity and breadth of cases that come before the court have increased over the last decade.

I support the chief judges’ position that it is appropriate to reassess work value where the nature of the work has significantly changed over time. As with a new name to better reflect the modern role of the court I support a review of the remuneration of its judges to better reflect the modern workload undertaken by the court. This is also an appropriate moment to note the recent publication, Judicial Workload, Time Tasks and Work Organisation. This publication reports on surveys undertaken with a significant number of judicial officers across Australia and provides some valuable insights into the highs and lows of judicial work. A report found that while a judicial role is rewarding and intellectually satisfying it is also often stressful and emotionally draining. I suspect that this is particularly the case for many of you who regularly hear cases in the court’s Family Law jurisdiction.

I want to acknowledge the burden of responsible that falls to judicial officers. The dedication that you demonstrate on a daily basis in often difficult and demanding circumstances shows your commitment to your oath of office and the principle that justice should be accessible to all. Despite additional funding flowing from the increases to some court fees, the cost of maintaining the court system remains high. The Commonwealth recovers well under 30 per cent of the cost of running the courts, a recovery rate which is comparable to or less than every other Australian jurisdiction. Commonwealth funding necessarily covers all of the facilities essential to the operation of the courts, including administration, accommodation, utilities, corporate services and travel. The challenges that arise in finding better ways to operate are not unique to the Federal Circuit Court nor to the judicial branch generally but the Federal Circuit Court is engaging fully with these challenges.

The shared administrative arrangements between the Federal Circuit Court and the Family Court, recently formalised in legislation, are an important demonstration about how independent bodies can work together to maintain services to the public without undue internal stresses. On 1 July 2013, changes will commence to recognise a single CEO position and agency under the Financial Management and Accountability Act. These changes will reflect the successful practice of the two courts since 2009, while providing greater certainty and reducing administrative duplication. Other areas, where close collaboration across courts might provide benefits to court users in the long term, including complementary approaches towards effective case management processes, developing a more cooperative approach to meeting future accommodation needs or even harmonising the development of courts’ information and communication technology capabilities.

I also consider there are opportunities to consider – to collaborate with the other federal courts to increase the use of technology, such as increasing the acceptance and use of electronic files. Over coming years, this will become crucial in ensuring court accessibility. Harnessing technology to improve administration, case management and communication with the public are issues familiar to the Federal Circuit Court and ones that I know are being currently considered. As judges of the Federal Circuit Court, you have always taken the lead in improving access for the benefit of court users. I encourage you to continue in that leading role, to contribute positively to the administration of justice and, in particular, assist this court to provide the best service possible.

Continuing to operate successfully, with limited resources, is a challenge not only faced by the courts but also by all arms of government. This is particularly so at a time when public expectations of what government can and should provide have significantly increased. But the public also has a legitimate expectation that resources from the public purse directed towards maintaining the courts are administered effectively and efficiently. Over recent years, the Federal Circuit Court has undertaken significant reforms to reduce costs and examine options for transforming its operations. I encourage this approach to continue in the court’s future planning.

The unique character and broad reach of the Federal Circuit Court of Australia plays a vital role in the federal justice system. It is integral to assisting people in regional communities to access federal court services. At its heart, a court is only as good as the judges who serve upon in. This court’s legal strength is matched by the diversity of backgrounds of its judges. By better reflecting the community it serves as well as delivering fast, accessible justice, the Federal Circuit Court bench commands community respect. It is a respect that warranted, at the least, a new name and title. I am confident that the Federal Circuit Court of Australia and its judges are well able to respond to any challenges that face the court over the next decade. As the court pleases.

HIS HONOUR: Mr Colbran.

MR COLBRAN: May it please the court. I acknowledge the traditional owners of the land on which we meet and pay my respects to their elders, past and present. I appear on behalf of the Australian Bar Association, which represents the members of the independent bars of each state and territory. It’s a pleasure to see so many former members on the bench today as we celebrate a milestone for the federal judiciary. We have heard the Attorney explain why the name change from Federal Magistrates Court to Federal Circuit Court is not only welcome but overdue. We agree with everything the Attorney has said but we would like to single out the change in status for those who have made the court’s reputation, its judicial officers.

The title, judge, far better reflects the nature and complexity of the work they do. It also sends an important message to the community regarding judicial independence. Many of us came to the law at a time when the state magistracy was another branch of the public service. That time, thankfully, has passed but federal magistrates have never been public servants. They have always been appointed under chapter 3 with the same rights of tenure as other federal court judicial officers. That factor was critical to the court’s integrity and reputation from the outset. It is also a reason why the court has gained jurisdiction over military justice matters. Your Honours, the creation of the court was an exciting development in the federal court structure and also for the law of Australia.

Today marks much more than a rebadging. It is a rebirth for a court that can already feel proud of its achievements. The prediction in 2003 by former Chief Justice Murray Gleeson that it will become one of Australia’s largest courts has been fulfilled. At that time, it had 20 judicial officers. Now it has more than 60. It is bigger than any state supreme court and handles more than 70 per cent of all matters in the federal court system. Appropriately, for a court reaching out to the community, it has a huge geographical spread with registries from Launceston to Rockhampton. That reach is matched by commitment to quality of service and by a characteristic focus on the needs of those for whom the court serves.

Many come before the court struggling with domestic distress. Enlightened thought has given to the creation of a less formal ambience while retaining judicial discipline and rigour. As courts go, it’s a welcoming place. Wigs and gowns are usually not required and the stresses our clients often feel, especially those in family – involved in family law and immigration matters, are eased by the less formal atmosphere. Special mention must be made to the leaders of this court. The community has been most fortunate to have Chief Justice Bryant and now Chief Judge Pascoe at the helm. Under such guidance, the humanity which sustains the respect of this court will never be forgotten. May it please the court.

HIS HONOUR: Mr Catanzariti.

MR CATANZARITI: May it please the court. I too acknowledge the traditional custodians of the land on which we meet and pay my respects to their elders, both past and present. It is a great honour to speak on behalf of the Law Council of Australia and its constituent bodies. The Law Council represents 60,000 lawyers through those constituent bodies, which include every state and territory bar and law society and the large law firm group. It is a success of what was the old Federal Magistrates Court that has brought us together today. Over 12 years, it won an enviable reputation for is no-nonsense, pragmatic, efficient approach to dispute resolution.

Just, quick and cost-effective has been a slogan for some courts but it has been the philosophy of this court since its inception. Whether Magistrates Court was ever the right title is a matter for others. At the outset, it may have been useful in promoting its role as a low cost forum for minor federal matters but as the workhorse for the federal judiciary, it has always reached across all areas of Commonwealth law. As the years went by, it also assumed much trial work that was once reserved for the Federal Court and the Family Court. It is gratifying that, as far as the name goes, matters have been set right. There are many in the community who incorrectly associate magistrates courts only with criminal proceedings and removing that misconception can only be a good thing.

It also reflects the fact that this court is truly bringing justice to the people. It sits permanently in the major regional centres, such as Cairns and Newcastle, and goes on circuit to a large number of regional cities for family law cases. It even conducts cases by telephone or video for those in remote areas. The Law Council has enjoyed a close working relationship with the court since its inception. It was involved in the selection process for the inaugural Chief Federal Magistrate of Australia, Diana Bryant. She is here today as Chief Justice of the Family Court and it’s only appropriate that her leadership be acknowledged. It is said that success has many parents but it is your Honour that can look back with more pride than others.

You navigated the difficult early days with great skill. When tensions existed with other courts, you were able to resolve them with a good deal of charm. Since 2004, Chief Judge John Pascoe has continued on the good work and been a tireless advocate for the court. I suspect the Chief Judge eventually wore the Federal Government down as he pointed out the workload and productivity of his judicial officers. I am sure he will most be pleased that he is now able to call them “judge”. The Law Council expects the excellent working relationship it has enjoyed with the Chief Judge and the court and the court liaison committee will continue. We would also like to pay tribute to the acting chief executive of the Federal Circuit Court, Richard Foster.

Mr Foster is also the chief executive of the Family Court and has played a big part in ensuring that both courts can indeed work together for the benefit of all litigants. It is a sad fact that both courts remain significantly under resourced. They are perhaps a victim of their own success and they have consistently proved they can do more with less. It is hoped that recent measures, which bring more money into the federal court system, is reflected in increased funding. This court handles about 100,000 cases a year. It is the first experience that many Australians, and for that matter, many prospective Australians, have with our justice system. Its new name will better reflect the esteem and respect with which it is held by the Australian legal profession. May it please the court.

HIS HONOUR: I acknowledge the traditional owners of this land and their elders past and present. Welcome everyone. I would particularly like to acknowledge the presence today of the Honourable Mark Dreyfus Attorney-General of Australia, the Honourable George Brandis Shadow Attorney-General, the Chief Justice Diana Bryant of the Family Court of Australia who joins us on the bench with two of her colleagues who are also previous members of this court, Chief Justice Tom Bathurst of the Supreme Court of New South Wales, members of the federal and state judiciary, both past and present, including the Chief Judge of the Land and Environment Court, judicial visitors the Chief Judge of the District Court of New Zealand, members of the legal profession, distinguished guests, family and friends of the court.

I want particularly to record apologies from French CJ of the High Court of Australia, Allsop CJ of the Federal Court and the Honourable Nicola Roxon and the Honourable Philip Ruddock, former Attorneys-General of Australia. Again, let me welcome you to this truly historic occasion. The first time in the history of Australia that a court has changed its name so as to better reflect the work carried out by the court and the status of its judiciary. On behalf of the court, I thank Allsop CJ and the judges of the Federal Court for extending to us the privilege of using this magnificent courtroom for the inaugural sitting of the Federal Circuit Court of Australia.

I would like to thank the Attorney-General, Mr Colbran and Mr Catanzariti for their very kind words. I would also like to acknowledge both the role of the Attorney-General in successfully concluding the arrangements for the court to change its name and the honour he does the court in being here today. Many people played a role in the journey the court has made. First and foremost, I would like to pay tribute to all of my colleagues for their hard work, dedication and skill. More than anything else, it is this that has earned the court the respect it now enjoys within the judiciary, the legal profession and in the community at large. I particular want to thank Judge Bowman for his outstanding contribution to case management in the court.

The court would not be what it is without him. Chief Justice Bryant was the first head of the court and together with the initial appointees of the court, played a key role in setting its future direction. The change of name would not have come about without the commitment to reform of the former Attorney-General, the Honourable Nicola Roxon. After wide consultation, Ms Roxon selected the name of the court and introduced the necessary legislation which I am pleased to say passed quickly with universal support. On behalf of the court, I thank Ms Roxon. The Shadow Attorney-General, the Honourable George Brandis, also recognised the need for the Court to be properly titled in light of its role in the Federal judiciary. I thank Senator Brandis for the unwavering support he has given the Court. Former Attorney-General Philip Ruddock also recognised the changing role of the Court, and made significant efforts to bring about a change of name during the period he was Attorney-General. I am grateful for the support he gave the Court. The Honourable Michael Black, the former Chief-Justice of the Federal Court of Australia, is here today. And I would like to thank him for his invaluable advice and his unswerving commitment to the ongoing role and proper recognition of this Court. That support has been continued by his successors as Chief Justice. I thank Keane J, now of the High Court, and I look forward to working with Allsop CJ in the future.

More generally, I would like to thank the judges of the Federal Court and the Family Court for their support of this Court over a long period. I also want to acknowledge the offices of the Attorney-General’s department who worked so hard to ensure the necessary legislation was in place to bring about the Court’s change of name. The Attorney-General’s office also played a major role in ensuring effective liaison between all parties involved. I am sure the Attorney’s advisor, Mr Michael Cooke, has a few more grey hairs as a result. Last but not least, I thank the Court’s Chief Executive Officer, Mr Richard Foster, and his team for all their hard work in ensuring that the change of name occurred smoothly.

From a distance, courts can appear remote and unchanging, bound by history and tradition and staffed by people who are somehow set apart. The reality is that courts change and evolve as society changes and evolves. We are part of a legal system that is in a continuing state of evolution. Our celebration today is about the capacity of the court system to grow and change, whilst preserving the great traditions of the law. The Federal Court system has been in a constant state of change since the establishment of the High Court shortly after Federation. The Family Court was established in 1975 and the Federal Court a year later in 1976. Both of these courts have also experienced considerable change since they were first established. This court sat for the first time in 2000 as the Federal Magistrates Court of Australia.

Over time, courts also broadly reflect social values and changing norms. The composition of courts has also changed. It is noteworthy that on this court, more than thirty per cent of our judges are women. And the court has been fortunate in having the first indigenous judge appointed to a federal court. It is my expectation that over time the judiciary of this court will reflect the remarkable multiculturalism and the diversity of modern Australia. If I can at this stage be permitted a brief moment to reflect on what has been a momentous journey for the Court. I need go no further than to recall the newspaper headline of 25 April 2008:

Federal Magistrates Court doomed.

This was a very understandable headline in the circumstances of the time. Fortunately, it did not prove prophetic. It is fair to say that the threat to the future of the Court only increased the resolve of the judges of this court to demonstrate the value of its work and its contribution to the administration of justice. In the end this proved to be successful. Despite the uncertainty, almost since inception about the future of the Court, the Court has continually grown, both in terms of judicial numbers and jurisdiction. It will shortly be a court of 65 judges, handling approximately 85 per cent of all family law matters throughout Australia, and a large proportion of the filings in general federal law.

The Court works cooperatively with the Federal Court and the Family Court to ensure that all matters are dealt with in the court which is most appropriate. There is no doubt that the process of evolution in this Court, and more generally, will continue. The Chief Justice of the High Court, the Honourable Robert French, in a forward to a recent book noted that the redesignation of this Court is likely to prove to be more than cosmetic. It may be a precursor to a widening and deepening of the jurisdiction of the Court, and its evolution towards the national federal trial court, with economic efficiency benefits to litigants and to the government. The name: Federal Circuit Court, emphasises the Court’s commitment to rural and regional Australia. But it means more than that.

The Court is working hard to develop special circuits to accommodate litigants who have particular needs, including indigenous Australians, Australians from different cultural backgrounds and those suffering from disability. There is clear evidence that many indigenous people who wish to access the family law system were previously confused about the role of this court, because of its name. There is now an opportunity for the Court to ensure that it is more accessible to indigenous Australians, and that it conducts proceedings in a way that is culturally appropriate and allows them to feel respected. In this way the Court can ensure that extended families and indigenous children play a meaningful role in their lives, and hopefully reduce the number of indigenous children in care.

Human rights and anti-discrimination are very important parts of the work of this Court. It is important that the Court is not just responsive to the applications before it, but also proactive in preserving the ideals of human freedom, dignity and respect for diversity, both nationally and internationally. I acknowledge the presence today of a number of guests with whom I have worked internationally in the field of human rights, and I thank them for the honour of their presence today. In concluding, I would like to quote from a former Chief Justice of the High Court, Sir Gerard Brennan, who said:

The modern judge possesses not only knowledge of the law, but also skill in the interpretation of statutes and of the judgments of superior courts, awareness of the existence and limits of the leeway in judicial decision making, appreciation of community standards and, on occasion, appreciation of enduring community values and the susceptibility of legal rules to their influence.

The members of this Court are, indeed, fortunate to be part of an Australian judiciary which Sir Gerard aptly describes. And to be part of a judicial system which is made up of many different courts, all of which play a unique role in upholding the finest ideals of justice and the law. As the courts continue to evolve, I am certain that the Federal Circuit Court of Australia will play its part in ensuring access to justice for all Australians, regardless of their geographic location, economic circumstances, ethnic or cultural background. In this way, we will continue to justify our place alongside other state and federal courts with longer histories, and add our unique contribution to their proud record of service to the ideals of justice in a free and fair society. The court will now adjourn.