Back to All News

If 'access to justice' is to have any true meaning, it must translate into concrete laws and policies

Speeches in Parliament
Penny Wright 12 Feb 2015

Senator WRIGHT (South Australia) (12:53):  I rise to speak to the Federal Courts Legislation Amendment Bill 2014, a bill that makes changes to the procedure and jurisdiction of the Federal Court and the Federal Circuit Court.

As the spokesperson on legal affairs for the Australian Greens, and as a person who is extremely concerned that all Australians be able to understand and resolve legal disputes and achieve fair outcomes, I take a keen interest in bills that change how some of our busiest courts work in practice.  If the term 'access to justice' is to have any true meaning, it must translate into concrete laws and policies that ensure that every Australian can seek fair outcomes and that ensure that legal issues can be resolved on the merits of the claim and not just the size of someone's wallet.

Sadly, this government has a track record of slashing funding to the community organisations and legal aid commissions that provide vital legal information, advice and representation to those who need it most. For this reason, it is always important to carefully examine any government-proposed changes to the existing legislative framework relating to the federal courts.

In many respects, the Federal Courts Legislation Amendment Bill 2014, which we are discussing today, is uncontroversial. It makes changes to procedures relating to appeals for minor procedural decisions, such as decisions to change a hearing date. It also clarifies the powers that can be exercised when the Federal Court issues a warrant for an arrest. These changes have not been met with any resistance from community legal organisations or professional bodies. In many respects they add clarity and consistency to already complex procedural rules, and to that end the Australian Greens do not oppose these changes.

However, the bill also seeks to make important changes to the jurisdiction of the Federal Circuit Court to enable that court to hear tenancy disputes where the Commonwealth is a party to the dispute. Perhaps more significantly, the bill also authorises further changes to the jurisdiction of the Federal Circuit Court to occur via regulation. This arrogant approach to law making, where the government seeks to give itself the power to make potentially very significant changes to the federal justice system while bypassing the full legislative process, has become a signature move by the Abbott government. It is an approach that offends rule-of-law principles that demand that executive powers be carefully defined by law and that reject the notion that it is up to the executive to determine for itself what powers it has and when and how they may be used. This principle is particularly poignant when the powers in question relate to the jurisdiction of the judicial arm of government.

These concerns have led the Senate Standing Committee for the Scrutiny of Bills to observe:

The conferral of jurisdiction on federal courts and the modification of such jurisdiction are matters of considerable importance and thus may be more appropriately dealt with in primary legislation. In addition, these matters may raise complex legal issues.

The Australian Greens share these concerns. The requirement that any substantive changes to the jurisdiction or procedures of the Federal Circuit Court be made via the full legislative process is an entirely reasonable expectation to have of a government that says it is committed to the rule of law. As currently drafted, this aspect of the bill reflects what has become a typical legislative overreach by this arrogant and out-of-touch government.

The bill also provides the opportunity for parliament to reflect on the devastating impact this government's policies and funding decisions have had on Australians' right to access quality legal information and advice. Across Australia, courts and legal assistance services are under increasing pressure to meet demand, and hundreds of thousands of Australians are being failed by a complex and costly legal system. This sad situation has been exacerbated by the Abbott government's crash-and-burn approach to ripping funding out of the legal assistance sector.

The people being failed by this system are not just those suspected of, or charged with, wrongdoing. They include some of the most vulnerable and innocent among us, such as children experiencing poverty and family violence or women experiencing domestic or sexual violence in remote communities. They also include the most ordinary among us: families seeking to clarify the guardianship arrangements for elderly parents, divorcing couples seeking to finalise property settlements or neighbourhoods seeking to protect their local environment from harm or degradation-these are Australians across the board.

The Australian Greens believe that the current failure to ensure access to justice for everyone in our community, and not just those who have deep pockets, has deep and long-lasting impacts on social cohesion in Australia, community safety and taxpayers' dollars. Just like a sick person who is denied ready access to health care, an unresolved and critical legal need can infect and devastate families and communities and lead to expensive, complex problems for the taxpayer to resolve down the line.

It is not just the Australian Greens who feel this way; these concerns have been voiced by judges, court administrators, the legal profession and social service organisations. There are more and more voices being raised to express these concerns. They have also been substantiated by evidence presented by PricewaterhouseCoopers and, most recently, by the Productivity Commission's own detailed inquiry into access to justice.

While the other parties, the old parties, turn the other way, the Australian Greens remain a strong, caring, progressive voice for improved access to justice. I encourage all senators to consider how the changes in this bill will work in practice, given the devastated legal assistance sector and the many unsurpassable barriers for ordinary Australians today to access quality legal advice.

Back to All News