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Annual Report 2007-08 Output 1.1

Legal services and policy advice on family law, federal courts and tribunals, civil procedure, alternative dispute resolution, administrative law and administration of related government programs

Summary

The Civil Justice Division assisted the Attorney-General to develop a more transparent and accountable process for federal judicial appointments, which the Attorney announced for comment in February 2008. The Department assisted the Attorney to implement this new process in relation to High Court, Federal Court and Federal Magistrates Court appointments. The Department has taken full responsibility from the States and Territories for managing Australia’s intercountry adoption programs. During 2007–08, the three-year plan for the roll-out of family law reforms, which includes the establishment of Family Relationship Centres and other new and expanded services for separated families, was completed. We contributed to the introduction of new laws relating to domestic and international family law and marriage law, including by providing de facto couples with access to the family law system and advising the Government on the ACT civil partnerships legislation. A major milestone in the establishment of a uniform evidence law regime was the introduction in May 2008 of the Evidence Amendment Bill 2008. The Department and the New Zealand Ministry of Justice finalised a treaty which will underpin reforms to improve civil court procedures between Australia and New Zealand.

Major achievements

Federal judicial appointments process

Within the first few months of the new Government, the Civil Justice Division provided advice to the Attorney-General on making the federal judicial appointments process more transparent and accountable. It was proposed that appointments to the Federal, Family and Federal Magistrates Courts involve putting public notices in the national media calling for expressions of interest and nominations, letters from the Attorney to a wide range of bodies inviting nominations and the establishment of selection panels to identify highly suitable candidates for his consideration. The process was announced for comment in February 2008, and has since been used for judicial appointments to the Federal Court and the Federal Magistrates Court.

The Attorney-General also announced a process of extensive consultation for High Court appointments, including with State and Territory attorneys-general, members of the judiciary, legal profession bodies and academic institutions. We have assisted the Attorney-General to implement this process for the upcoming appointment of a new Chief Justice of the High Court. Feedback on the new processes has been very positive.

Intercountry adoption

We have successfully taken responsibility for managing Australia’s intercountry adoption programs. The States and Territories, which previously had this responsibility, continue to process individual adoption applications. The move resulted from a recommendation of the report of the House of Representatives Standing Committee on Family and Human Services entitled Overseas Adoption in Australia. Commonwealth leadership has enabled a greater strategic direction for Australia’s intercountry adoption programs as well as concentrating efforts to establish and strengthen relationships with current and potential partner countries. Meetings have been held in Australia and overseas with officials from Cambodia, Vietnam, Taiwan, Hong Kong, Thailand, South Korea, Ethiopia, Bolivia, Chile, the Philippines, Sri Lanka and India. The National Peak Overseas Adoption Support Group was established to ensure that the Government is fully informed of the views of the community when making decisions on intercountry adoption. The Commonwealth–State Agreement for the Continued Operation of Australia’s Intercountry Adoption Program was renegotiated and agreed to by ministers to provide a framework for governmental collaboration on intercountry adoption issues. To keep the intercountry adoption community informed we established a comprehensive website which can be accessed via http://www.ag.gov.au/FamiliesAndMarriage/IntercountryAdoption/Pages/default.aspx.

Family law and services

The Civil Justice Division assisted with the introduction into Parliament of the Family Law (De Facto Financial Matters and Other Measures) Amendment Bill 2008 in June 2008. These amendments support the Government’s commitment to applying family law in a consistent way to de facto relationships. The Division also advised the Government on the Civil Partnerships Bill 2008 (ACT).

We participated in a joint working group established by the Standing Committee of Attorneys-General (SCAG) in July 2007 to consider the harmonisation of surrogacy parenting arrangements on a national basis.

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 was introduced into Parliament to amend the Judges’ Pensions Act 1968 and the Federal Magistrates Act 1999 to enable reversionary death benefits to be paid to same-sex partners of judges and federal magistrates and their children.

We developed the Evidence Amendment Bill 2008, which was introduced into Parliament on 28 May 2008. The Bill largely implements the Model Evidence Bill endorsed by SCAG in July 2007. It adopts recommendations of a joint Law Reform Commission report delivered in 2005 on the Uniform Evidence Law regime, which has been developing throughout the past 10 years. The Bill includes provisions that will protect vulnerable witnesses who give evidence, ensure that members of same-sex couples cannot be compelled to give evidence against their partners and allow the court to hear evidence of traditional laws and customs.

This year marks the completion of a three-year project to implement changes to the family law system. During the year, 25 new Family Relationship Centres, eight new Parenting Orders Programs and nine new Children’s Contact Services were opened. Service providers were selected to run a further 25 Family Relationship Centres and 14 Children’s Contact Services, due to open in 2008. That will complete the roll-out of new services under the reform package. The Division expanded and improved Family Relationships Online during the year, providing information about Family Relationship Centres and other services.

We commissioned the development of new competency-based training standards for family dispute resolution practitioners. The training standards were endorsed by the Ministerial Council on Vocational Education and Training in September 2007. As at 30 June 2008, approximately 1,600 family dispute resolution practitioners were registered.

In July 2007, a telephone dispute resolution service was introduced as part of the Family Relationship Advice Line. We conducted selection processes for organisations to run new Supporting Children After Separation programs and new Post Separation Cooperative Parenting services to assist high-conflict parents in regional areas.

The Civil Justice Division provided assistance under the 1980 Hague Convention on the Civil Aspects of International Child Abduction to secure the prompt return of children wrongfully removed to, or retained in, countries that are party to the Convention. In 2007–08, 82 children were returned to Australia (57 following court orders and 25 voluntarily) and 56 children were returned from Australia to other countries (37 following court orders and 19 voluntarily). We liaised with the Lebanese Government via the Department of Foreign Affairs and Trade (DFAT) on an agreement to promote cooperation between countries in cases involving the protection and welfare of children.

Procedures for handling cases under the 1996 Hague Convention on the Protection of Children were developed. In November 2007, the Department hosted a meeting of the Australian Central Authorities for the Child Protection Convention. The meeting, also attended by New Zealand delegates, progressed the implementation of the Convention in Australia and identified processes for receiving requests for assistance under the Convention.

Amendments to the Family Law (Child Abduction Convention) Regulations 1986 were made on 19 July 2007. The amendments improve the operation and effectiveness of the Child Abduction Convention in Australia and are based on experience gained in administering the Convention and a number of recent court decisions.

We continued to work with the Child Support Agency to ensure that child support liabilities and proceedings under the Family Law Act 1975 are pursued effectively and expeditiously. The Department also contributed to the development of the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance. This included attendance at the Hague Conference held in November 2007 to finalise the text of the Convention.

We received 1,808 applications from people wishing to register as marriage celebrants. Those applications were considered in accordance with statutory requirements and 935 marriage celebrants were appointed during the financial year.

Courts and administration of justice

The Civil Justice Division and the New Zealand Ministry of Justice developed the Trans-Tasman Treaty on Court Proceedings and Regulatory Enforcement to:

  • provide a more streamlined approach to the service of process in Australia and New Zealand
  • broaden the range of judgments that can be registered and enforced in the two countries, and
  • support the wider use of teleconference and video link technology.

The text has been agreed and arrangements have been made for the treaty to be signed.

The Division assisted the Attorney-General with the appointment of one justice to the High Court, seven judges to the Federal Court, three judges to the Family Court and three federal magistrates, all of whom took office in 2007–08. We assisted with the appointment of a new judge to the Supreme Court of Norfolk Island. We also assisted the Attorney-General with two new appointments and five reappointments to the Administrative Appeals Tribunal, five reappointments to the National Native Title Tribunal, and the reappointment of a member of the Defence Force Discipline Appeal Tribunal for a further five years.

The Division assisted with the passage of the Judiciary Amendment Act 2008 through Parliament. The Act, which was passed on 24 June 2008, responds to the High Court decision in British American Tobacco v Western Australia, and implements recommendations of SCAG to ensure that State and Territory laws on the recovery of invalid taxes apply in federal proceedings for the recovery of that revenue.

We developed draft legislation that would give the Federal Court indictable criminal jurisdiction to hear prosecutions for serious cartel offences. These offences will be included in amendments to the Trade Practices Act 1974 being developed by The Treasury. The proposed jurisdiction of the Federal Court would be concurrent with that of State and Territory supreme courts.

Following changes to the Administrative Arrangements Order after the federal election, the Division prepared Orders for the Governor-General under sections 19B and 19BA of the Acts Interpretation Act 1901. The Orders updated specific references to ministers, departments and secretaries of departments in Commonwealth legislation and instruments.

The Division assisted with the passage of the Statute Law Revision Bill 2008 through Parliament on 26 June 2008. The Bill corrects minor technical errors in Commonwealth legislation, repeals spent legislation and removes gender-specific language to ensure that our laws are contemporary.

A new simplified fee structure, which aligns filing fees for family law matters in the Family Court of Australia and the Federal Magistrates Court, commenced on 15 October 2007. It is designed to minimise confusion for parties navigating the family law system. The Division was responsible for developing the Family Law Amendment Regulations 2007 (No 3) and the Federal Magistrates Amendment Regulations 2007 and worked with the courts on the implementation of the simplified fee structure.

The Judges’ Pensions Amendment Act 2007 and the Federal Magistrates (Disability and Death Benefits) Amendment Act 2007 commenced on 25 September 2007. The Judges’ Pensions Amendment Act amended the Judges’ Pensions Act 1968 to apply to federal judges, who are subject to the superannuation surcharge, the reduced rates of surcharge that applied in 2003–04 and 2004–05 and provide to those judges an option of commuting a proportion of their pension entitlements to discharge surcharge debts.

Purchaser–provider arrangements

In 2007–08, we purchased call centre services from Centrelink to support the Family Relationship Advice Line. The Advice Line, which is part of the Government’s Family Law Reform package, has been providing services to families since July 2006. The Division has executed a memorandum of understanding with Centrelink, which establishes the terms and conditions of the arrangement. Centrelink provides the information and parenting advice components of the Advice Line services, including monthly statistics.

Evaluations and reviews

Review of the Legislative Instruments Act 2003

On 26 March 2008, the Attorney-General appointed Anthony Blunn AO, Professor John McMillan and Ian Govey to a committee to conduct a review of the operation of the Legislative Instruments Act 2003. The review is required by section 59 of the Act and is being supported by the Division.

An issues paper for consultation was released by the committee on 9 April 2008 and was sent to key stakeholders over 10 and 11 April 2008, with 64 written responses received.

The committee met with key Commonwealth departments and agencies, as well as parliamentary bodies, on 10, 17 and 21 April and 9 May 2008. The committee also held public forums in Sydney and Canberra on 28 April 2008. It intends to report in the second half of 2008.

Review of the delivery of family law services

In April 2008, the Civil Justice Division commenced a review into the delivery of family law services by the federal courts, assisted by consultant Des Semple. The review is developing proposals for improving the efficiency, effectiveness and integration of service delivery across the family law jurisdiction. It is being conducted in close consultation with the courts, legal professional bodies and other key stakeholders. The review expects to report to the Attorney-General in August 2008.

Review of the resourcing of family law courts in Western Australia

In May 2008, we began a review of the resourcing of family law courts in Western Australia. The review will enable the Government to comprehensively assess whether any changes will need to be made in the resourcing and delivery of family law services in Western Australia. Des Semple is assisting in the review which is expected to report later in 2008.

Outlook

Key priorities during the next financial year will include opening 14 Children’s Contact Services in 2008, participating in the Evidence Working Group, developing a second phase of amendments to the Uniform Evidence Bill, and consultation with stakeholders and developing measures for consideration by Government to improve access to the civil justice system.

We will continue processing marriage celebrant applications as the cap on numbers ends, introducing higher training qualifications and ongoing professional development requirements for people wishing to register as marriage celebrants, and reviewing the performance of registered marriage celebrants.

In the area of intercountry adoption, the Division will lead a working group that will consider the harmonisation of laws, fees and processes, ensure new and existing intercountry adoption programs meet Hague Convention standards and the principles of the Intercountry Adoption Strategic Plan, and develop a national intercountry adoption database to allow for a better understanding of intercountry adoption in Australia.

Other key priorities will include:

  • examining options to strengthen journalist’s privilege
  • working with the States and Territories and the courts towards accession of the Hague Service Convention
  • developing legislation with the States and Territories to implement obligations under the Trans-Tasman Treaty on Court Proceedings and Regulatory Enforcement
  • finalising an agreement with States and Territories for the development of a single form and common category of witnesses for statutory declarations
  • providing advice and assistance to implement the Government’s response to reviews of the structure of the family law courts, and resourcing of family law courts in Western Australia, and
  • advising Government on the outcomes of stakeholder input to a more transparent and accountable appointments process.

Performance indicators
Quantitative and qualitative

Output 1.1

Legal services and policy advice on family law, federal courts and tribunals, civil procedure, alternative dispute resolution, administrative law and administration of related government programs

Activity

Performance indicator

Result

Policy items provided to ministers Quantity   2006-07 2007-08
Submissions to ministers 494 498
Cabinet submissions 2 1
Ministerial correspondence* 1,441 3,372
Responses to questions on notice 1
Bri​efs 182 286
Speeches 35 19
Quality Advice to ministers provided within agreed timeframes Achieved

The Division consistently provided policy items in a timely fashion.
Extent of satisfaction of ministers as measured by periodic feedback from ministers and their offices Highly satisfied

The Attorney and his office complimented the Division on its work.
Advice provided to other agencies Quantity   2006-07 2007-08
Items of legal/policy/operational advice‡ 686 880
Quality Advice provided within agreed timelines Achieved

The Division consistently provided advice on time and gave rapid responses to urgent requests.
Advice provided by the Department is respected by client agencies, as measured by periodic feedback Achieved

Stakeholders indicated they are highly satisfied with service level.
Agencies provided positive feedback and expressed gratitude for services provided by the Division.
Administration (implementation, program management and regulation) Number of services under the Family Relationship Services Program for families (including Family Relationship Centres and other services for separating families) that are maintained, expanded or established within Government timeframes (and in accordance with departmental responsibilities set out in the Business Partnership Agreement with the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA))
Quantity   2006-07 2007-08
New Family Relationship Centres opened 15 25
(bringing the
total to 40)
New Children’s Contact Services 7
(bringing the
total to 42)
9
(bringing the
total to 51)
New Parenting Orders Program services 4
(bringing the
total to 12)
8
(bringing the
total to 20)
Family Dispute Resolution Services 66** 66
Family Relationship Counselling Services (jointly funded with FaHCSIA) 40 40
Family Relationship Advice Line
(in collaboration with Centrelink)
1 1
(telephone dispute resolution component added)
Numbers of applications and other statutory requirements of the Marriage Celebrants Program dealt with in accordance with the specified statutory timeframes
Quantity   2006-07 2007-08
New applications for Marriage Celebrants Program 1,127 1,808
Applications processed 927 1,591
Casework and international matters Quantity   2006-07 2007-08
Contributions to, preparations for and attendance at, international meetings/negotiations 10 188#
Number of matters handled in accordance with international arrangements 482 205
(in accordance with the Hague Convention on the Civil Aspects of International Child Abduction)

142
(judicial assistance matters dealt with in accordance with international arrangements)
Quality Timely and effective processing of international family and civil procedure matters

Achieved

Effective application and administration of international conventions for protection of children, adoption, abduction, maintenance and custody.

Administrative processing of applications made under the Hague Convention on the Civil Aspects of International Child Abduction begins as soon as an application is received.

Where all documentation has been received, applications are generally assessed by a case officer and referred to the relevant jurisdiction within two weeks of receipt, subject to translation requirements. Urgent cases are assessed and transferred to the relevant jurisdiction as soon as practicable.

Extent of compliance with treaty obligations in relation to families and children

Achieved

In 2007–08, the Department, in conjunction with the State and Territory central authorities, secured the return of 82 children to Australia (57 following court orders and 25 voluntarily) and the return of 56 children from Australia to other countries (37 following court orders and 19 voluntarily).

Australia attended meetings on the Hague Convention, including private international law, maintenance and general affairs and policy.

* The number of ministerials relates to the number of actions in relation to ministerial correspondence.

† Briefs include papers on current issues, possible parliamentary questions (new and updated) and meeting briefs.

‡ The number of advices provided by output have been derived from the Department’s annual workload survey and represent a snapshot obtained by aggregating data from four separate one-week periods—two from parliamentary sitting periods and two from non-sitting periods.

** The figure in last year’s Annual Report was shown as 41, which was the number of service providers. However, for consistency with other service types, the figure now reflects the number of distinct services.

# This figure is significantly larger than last year’s because the Civil Justice Division took a different approach with recording this information this year. Last year each delegation visit overseas was counted as (1), even though delegates may have attended numerous meetings on each visit. This year each international meeting has been counted separately.

Performance information for Output 1.1—administered items

Administered item

Performance indicator

Result

Family Relationships Services Program Quantity   2006-07 2007-08
Number of clients* 85,198 registered clients plus 100,457 calls to the Advice Line and 57,663** contacts with Family Relationship Centres 106,288 registered clients plus 91,444 calls to the Advice Line, 971 telephone dispute resolution clients through the Advice Line and 144,064** contacts with Family Relationship Centres
Quality High-quality, accessible services are delivered to clients Achieved

To ensure high-quality services, the Department ran training programs and other development forums for service providers and provided guidelines and other resources. These included a range of new information for service providers and family dispute resolution practitioners on the departmental website.
Budget price: $126.991 million Actual price: $124.468 million
Family Court of Western Australia Quality Efficiency and timeliness of administration of payments made in accordance with the agreement with the Western Australian Government and relevant legislation Achieved

The Government contributes to the operating expenses of the Family Court of Western Australian to ensure access to the court in family law and child support matters.

The Government is providing $700,000 in additional funding over three years commencing 2007–08 for an Indigenous liaison pilot program to improve the delivery of family law services in Western Australia.
Budget price: $13.337 million Actual price: $13.265 million
Payments for services under the Family Law Act 1975 and the Child Support Scheme legislation Quality Efficiency and timeliness of funds paid in accordance with Commonwealth–State agreements to achieve an accessible system of federal justice for family law and child support matters Achieved

In accordance with individual agreements with the States, the Australian Government promotes an accessible system of federal civil justice by providing funds for services under the Family Law Act 1975 and Commonwealth child support legislation by State courts of summary jurisdiction.
Budget price: $2.145 million Actual price: $1.823 million
Payments to Law Courts Limited for contributions to operating and capital expenses Quality Funds provided in accordance with legislation and any relevant agreement or arrangement Achieved

The Department pays 47.5% of the operating expenses of the Law Courts building in Sydney, which is based on the proportion of space occupied by the Commonwealth.

$133.100 million over 2004–05 to 2010–11 has been provided to fund the refurbishment of the building.

All payments were made in accordance with agreed arrangements between the Australian and New South Wales Governments.
Budget price: $35.037 million Actual price: $35.037 million
Judges’ Pensions Scheme—superannuation surcharge Quality Expenditure in accordance with legislation Achieved

These funds enable the Department to pay superannuation surcharge debts arising in respect of federal judges under the Superannuation Contributions Tax (Assessment and Collection) Act 1977.
Budget price: $0.625 million Actual price: $0.625 million
Judges’ Pensions Act 1968 Quality Expenditure in accordance with legislation Achieved

The Judges’ Pensions Act 1968, administered by the Attorney-General, provides for the payment of pensions to former judges and some former statutory office holders. All payments have been made in accordance with advice provided, entitlements and agreed arrangements.
Budget price: $25.100 million# Actual price: $22.526 million#
Remuneration Tribunal Act 1973—Justices of the High Court Quality Expenditure in accordance with legislation Achieved

The Department administers the remuneration and allowances of justices of the High Court, based on determinations made by the Remuneration Tribunal. All payments have been made in accordance with advice provided, entitlements and agreed arrangements.
Budget price: $3.150 million Actual price: $2.926 million
Payments for grants to Australian organisations Quality Funds provided in accordance with approved arrangements Achieved
Budget price: $1.346 million Actual price: $1.339 million
Payments for membership of international bodies Quality Funds provided in accordance with approved arrangements Achieved
Budget price: $0.659 million Actual price: $0.650 million
High Court Justices (Long Leave Payments) Act 1979 Quality Funds provided in accordance with legislation and approved arrangements Achieved
Budget price: $0.326 million Actual price: $0.326 million

* The Attorney-General’s Department component only. FaHCSIA reports on client numbers for its component.

† Figures provided by FaHCSIA and comprise registered clients of face-to-face services funded by this Department under the program.

‡ Figures from the Advice Line Call Management System.

** Figures of telephone and walk-in contacts with Family Relationship Centres manually collected by FaHCSIA. A proportion of these contacts may become registered clients.

# on a cash basis


Our people

Working strategically behind-the-scenes

Margaret Close (left) and Allison Wood, Civil Justice Division.

Margaret Close (left) and Allison Wood,
Civil Justice Division.

Margaret Close and Allison Wood, both from the Justice Reform Section, have done much of the behind-the-scenes work in developing the new Government’s more transparent judicial appointments process.

The process included placing public notices seeking expressions of interest and nominations for positions on the Federal Court and the Federal Magistrates Court, and establishing panels to assess applications and meet with short listed candidates.

Margaret, Senior Legal Officer, worked as a solicitor in Brisbane before she joined the Department as a graduate in 2006.

‘I really enjoy having a wide variety of work and dealing with “big picture” issues, our Federal Courts Branch offers both of these,’ Margaret said.

‘It is also satisfying to see the work I do has a noticeable and positive impact upon the civil justice system.’

The purpose of establishing the new judicial appointments process is to ensure that appointments are based on merit and that all suitable candidates are fairly and properly considered.

Allison, Principal Legal Officer, started work as a family law solicitor before joining the Department in 1999. She finds it rewarding to work as part of a team of dedicated people, contributing to strategic reforms of the federal civil justice system.

‘There are many aspects of my current role that I find appealing, including the subject matter, stakeholder and people management, and working with an excellent team of people.’

In June 2008, the Government announced the appointment of three new Federal Court judges who were identified through the new process: The Hon Justice Jayne Jagot, Lindsay Foster SC and Nye Perram SC.