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Concerns remain with ‘disjointed, piecemeal’ court merger bills

In the wake of the release of recommendations about the proposed merger of the Federal Circuit and Family Courts from the Senate Legal and Constitutional Affairs Legislation Committee, significant concerns remain regarding whether the merged court will achieve the government’s stated objectives.

user iconJerome Doraisamy 18 February 2019 The Bar
Concerns remain with ‘disjointed, piecemeal’ court merger bills
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The committee report, which was tabled last week, recommended that additional resources for registrars be allocated, that the existing appellate jurisdiction of the Family Court be retained rather than creating a new, merged one, that judicial qualifications be more stringent and that suitable appointees be sourced immediately, and – ultimately – that the bills proposing the merged court be passed by Parliament.

Australian Bar Association president Jennifer Batarouney QC commended the committee “for appreciating the critically important and specialist work” undertaken by members of the judiciary and family law practitioners but went on to note that the ABA is still skeptical that the proposed merger of the Federal Circuit Court and the Family Court will achieve what the government intends it to.

Centre Alliance Senator Rex Patrick, who acted as a participating member of the committee for this inquiry, said while the government has addressed most of the legal profession’s concerns, there remained “outstanding issues”.


“These issues need to be resolved before Centre Alliance can support the bill. We are discussing these issues with the Attorney-General,” he said.

Those issues appear significant from the Senator’s perspective, as he also noted that: “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.”

While acknowledging the recommendations of the committee, Ms Batrouney said that the ABA remains concerned that the bills will result in a “re-badging” of the current courts with the appearance of amalgamation, that experienced judicial officers will be lost, that actual efficiencies are hard to identify, and that the public consultation process has been “inadequate”.

Further, the bar has concerns that the bills are “based on the chronically flawed [PriceWaterhouseCoopers] report, which makes unjustified assumptions and misunderstands the nature of the work of the two courts”, that increased funding and resources is lacking in the bills, and that the legislation will be pushed through prior to crucial recommendations from the Australian Law Reform Commission.

“Ultimately, it remains the ABA’s position that the most prudent way forward for the government would be to put the bills on-hold and await the upcoming ALRC report into family law and then consider reforms in a holistic manner, rather than the current disjointed, piecemeal approach,” Ms Batrouney concluded.

“Our families deserve better than that.”

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