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  • Federal Magistrates Court restructure a 'shambles'
  • By Nicola Berkovic
  • The Australian
  • 28/05/2010 Make a Comment
  • Contributed by: moses ( 6 articles in 2010 )
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ATTORNEY-GENERAL Robert McClelland has announced a major restructure of the federal court system without having worked out many of the details about how it will work.

Those details include how many federal magistrates will form a new lower tier of the Family Court and on which court Chief Federal Magistrate John Pascoe will sit.

The basic plan is that the government will dissolve the family arm of the Federal Magistrates Court and fold it into the Family Court.

It will also create a new military court under chapter III of the Constitution: the section that covers the judiciary.

Federal Court judges and federal magistrates who remain to do general work on the Federal Magistrates Court will be offered a dual commission to sit on the military court if they have military experience.

However, opposition legal affairs spokesman George Brandis has already warned that the Coalition will fight the absorption of federal magistrates into the Family Court and has labelled the plan a "shambles".

This means the government will probably be forced to rely on minor party support to push the changes through parliament.

Several magistrates have made it clear they are unhappy about the reforms.

Magistrates who agree to move to the Family Court will become known as judges, but will not be given a pay rise or be able to access the full judicial pension.

It is unclear how many of the 59 federal magistrates are prepared to move across to the Family Court, or even how many are needed for the general division, which handles a variety of cases including migration, administrative law, industrial relations, bankruptcy and copyright matters.

"To be honest, it's difficult to say how many will go but I think the bulk of those who do family law will go across to the Family Court," Mr McClelland said.

"There may be a small number who won't go, and that is both their individual right and their constitutional right."

The government has not yet determined how many it needs to remain to do general work.

"We haven't really been able to determine how many would be required," Mr McClelland said.

About 10 magistrates currently work full-time on general work, and others do a mix of family and general work.

Mr McClelland acknowledged that some magistrates were unhappy they would not get a pay rise or increased superannuation.

"I've met with them and some are unhappy that they don't have judicial superannuation in particular," Mr McClelland said.

"For a long while I've been of the view that it is appropriate to appoint judges in circumstances where they don't lock into very generous judicial superannuation arrangements and this will be that situation."

He said family magistrates who refused to move would still be given a family-law case load.

Similarly, those who did move across but still wanted to hear a mix of cases might be given the opportunity to sit on both courts.

This would add flexibility to manage resources across the courts, especially for smaller centres, where there is less work.

However, it would lose one attraction for commercial litigants: that magistrates would be forced to specialise rather than dabble in general work for a week or a month at a time.

Mr Pascoe will retain his title, but Mr McClelland said he was not yet sure whether Mr Pascoe, who has expertise in family law, would sit as a judicial officer.

"How he may be accommodated in the new Family Court is something that we will discuss with him and the Chief Justice of the Family Court," he said.

Mr McClelland denied that the announcement of the new military court had been used as a cover for what might be seen as a backflip on the government's plan to dissolve the FMC entirely.

Last year, Mr McClelland accepted a recommendation by consultant Des Semple to drive efficiencies in the federal court system by disbanding the Federal Magistrates Court, which was created by the Howard government.

He said the new military court justified the retention of the Federal Magistrates Court because it would provide the magistrates with an additional caseload.

But he acknowledged there were only about 77 military cases a year.

Senator Brandis said the plan had been a "master class in bad policy making" and a "shambles".

"We wouldn't support the effective absorption of a lot of the federal magistrates into the Family Court," Senator Brandis said.

"We always have been (against it) and we continue to be.

"We think the Federal Magistrates Court has been very successful in disposing of the vast majority of family-law cases.

"It's been more efficient, less costly and more pragmatic.

"It has a much better reputation with litigants.

"And we don't want to see the Federal Magistrates Court in fact or de facto absorbed into the Family Court."

However, the Coalition will support the new military court.


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