5 – This chapter deals with three major issues of relevance to the Commonwealth Courts: structures for the administration of the Federal Court of Australia, the Family Court of Australia, and the Federal Magistrates Court of Australia (and the Military Court of Australia, when it is created); the application of the Efficiency Dividend to those Courts; and the use of Commonwealth Law Courts Buildings (other than the High Court building in Canberra). Court-specific detail is set out in Appendices 1 (Federal Court of Australia), 2 (Family Court of Australia) and 3 (Federal Magistrates Court of Australia). Administration of the Commonwealth Courts Introduction The section deals with structures for the administration of the federal courts, other than the High Court of Australia. The Courts to which it relates are referred to as “Commonwealth Courts”. It takes as given the following propositions: the separation of powers entrenched in the Australian Constitution; the need to ensure that, within that framework, optimum use is made of public resources; and the ongoing existence of the Family Court of Western Australia (which is not separately discussed hereafter). Traditional Commonwealth Court administration structure The Federal Court of Australia Act 1976 and the Family Law Act 1975 respectively declare that the Federal Court of Australia and Family Court of Australia comprise only their judicial officers. Traditionally all administrative support for each Court was provided by officers of the Attorney-General’s Department and Chief Justices had no lawful capacity to direct the duties of relevant departmental officers (unless so delegated by the Secretary of the Department). In the estimation of the Review Leader, experience under this structure was that: Chief Justices either refrained from seeking to direct officers (which provided no incentive for departmental officers to better serve the judicial arm of the Court), or purported to direct those officers without legal authority or the associated accountability (and often with adverse financial and other impacts for the Department); officers assigned to the Courts were located distant from the departmental executive and were largely ignored by the Canberra-based executive in terms of day-to-day oversight;
Determination of claims Determine whether or not native title exists and the nature and extent of that title Mandatory Federal Court Core judicial function, not capable of being conferred on an administrative agency. Registration of claims Apply the registration test to native title claims Mandatory NNTT Must be performed by an administrative agency. Registration confers valuable rights for native title claimants. The registration test is complex and expensive to administer – the Government could perhaps consider simplifying the test. Registration of ILUAs Apply the registration test to ILUAs Mandatory NNTT Must be performed by an administrative agency. Registration binds non-party native title holders. The registration test is complex and expensive to administer – the Government could perhaps consider simplifying the test. Determine objections to expedited procedure When an objection to expedited procedure is lodged, the NNTT determines whether or not the relevant future act attracts the expedited procedure Mandatory NNTT Must be performed by an administrative agency. Enables certain minimum impact future acts to proceed expeditiously Future act determinations Where no agreement can be reached, the NNTT determines whether or not a future act may take place, and any conditions Mandatory NNTT Must be performed by an administrative agency. This is a Tribunal Member function and cannot be performed by a judicial member of the NNTT.
DISPUTE RESOLUTION Mediation of claims On the direction of the Federal Court, claims are mediated prior to any determination of native title. Mandatory NNTT, Federal Court or external mediator Currently, the NNTT conducts the majority of mediations because it has the resources. There is no meaningful difference in how the NNTT and Federal Court mediate claims. It would be preferable to consolidate the mediation function within the Federal Court, which would align responsibility for managing claims to resolution with the resources to do so. Case management The Federal Court case manages all native title claims. Federal Court case management may incorporate mediation of claims. Mandatory Federal Court Federal Court case management has been very effective is driving claims to resolution. It is appropriate that this function continue to be performed by the Federal Court. Negotiation of ILUAs Parties may request NNTT assistance to negotiate ILUAs Discretionary NNTT or private provider Cannot be performed by the Federal Court except in connection with resolution of a claim. Further consideration should be given to whether this function should be performed on a fully or partially basis Mediation of future acts On request from parties, mediate among parties to assist in obtaining their agreement on a proposed future act Mandatory NNTT or private provider Cannot be performed by the Federal Court. Although a mandatory function, if a cost recovery regime were implemented, consideration could be given to extending it to mediation of ILUAs to send appropriate price signals recovered
NATIVE TITLE SUPPORT SERVICES Maintenance of registers Maintenance and searches of registers of native title, claims and future acts Mandatory NNTT Only the National Native Title Register could be maintained by Federal Court – keeping the registers together is efficient. Notifications Notification of claims and ILUAs Mandatory NNTT Only claims could be notified by the Federal Court –keeping notification functions together is efficient. Notification can be costly – with a more developed native title system, government should consider whether more limited notification might be appropriate in future Strategic/ regional planning Regional planning meetings etc with a view to agreeing priorities. Discretionary NNTT The NNTT’s work in this area could be discontinued as this work is now primarily achieved through the Federal Court’s case management function. Native title system reporting Various reporting on the native title system Discretionary NNTT/ Federal Court This function helps to assess the state of the native title system – for the function to be performed effectively, input from various stakeholders needs to be consistent, particularly input from the NNTT and Federal Court Information/ assistance A wide range of NNTT services including help with applications, information, geospatial, mapping, research, workshops, seminars Discretionary NNTT Some functions are crucial to the native title system, particularly geospatial and mapping. However, some other functions should probably not be a priority – further consideration should be given to which of these functions should continue to be performed. Further consideration should also be given to whether some of these functions should be performed on a fully or partially basis Other statutory functions not performed in practice Detailed in Appendix 19 Varies NNTT No expenditure is recorded against these functions because they have not been performed in practice. The Government should consider whether some of these functions should be removed from the legislation recovered
development of that plan will necessitate more detailed analysis of Family Court property requirements. Recent reviews/material considered by Review Team: Strategic review of leased accommodation. Prepared by Alan Piper Consulting for the Family Court of Australia (updated 2007) Semple Review – future governance options for federal family law courts in Australia – Attorney-General’s Department (2008) Joint Committee of Public Account and Audit in relation to the efficiency dividend on small agencies (2008) Improving access to justice – a better framework for federal courts. Department (November 2008) IT Costs Review. Prepared by Acumen Alliance for the Family Court of Australia (January 2008) National Support Office Health Check – Family Court of Australia. Prepared by PricewaterhouseCoopers (March 2008) Shared services business case. Prepared by KPMG for the Attorney-General’s Department (June 2011) Family Court of Australia and Federal Magistrates Court of Australia Financial Health Check. Prepared by Oakton (March 2011) Family Court of Australia Annual Report 2008-09 Family Court of Australia Annual Report 2009-10 Family Court of Australia Annual Report 2010-11 Family Court of Australia response to Review Questionnaire – (2011)
8 - Established by/under: Criminology Research Act 1971 Financial Framework: On 1 July 2011 the Criminology Research Council (CRC) was merged with the Australian Institute of Criminology (AIC) to form a single Statutory Agency under the Financial Management and Accountability Act 1997. Prior to 30 June 2011 the AIC was a body under the Commonwealth Authorities and Companies Act 1997. Agency Functions: The AIC has the following functions: to promote justice and reduce crime by: conducting criminological research; and communicating the results of that research to the Commonwealth, the States, the Australian Capital Territory, the Northern Territory and the community; to assist the Director in performing the Director’s functions; to administer programs for awarding grants, and engaging specialists, for: criminological research that is relevant to the public policy of the States, the Australian Capital Territory and the Northern Territory; and activities related to that research (including the publication of that research, for example). Governance Structure: The Criminology Research Act 1971 provides that the AIC consist of the Director (a Statutory Officer holder) and the staff. AIC staff can be engaged under the Public Service Act 1999 or the Criminology Research Act 1971. Employment under the Criminology Research Act 1971 was retained for flexibility to recruit for specific projects and to attract specialised skills. The majority of staff are employed under the Public Service Act 1999.
Average IT Expenditure per ASL 4,345 9,973 HR Expenditure per ASL 5,398 3,869 Payroll Expenditure per ASL 1,186 1,285 Property Expenditure per ASL 17,483 28,095 Support Activities (excl Rent)/Total Expenditure 20% 22% Substantive Activities/Total Expenditure 73% 66% Rent/Total Expenditure 7% 12% AUSTRAC has developed quite a sophisticated IT system in order to execute their regulatory and intelligence functions. In responding to the questionnaire, AUSTRAC have split IT expenditure between support and substantive activities. The IT expenditure per ASL recorded above reflects the support component of AUSTRAC’s IT activities; further IT expenditure is included within substantive activities. Property Analysis: Table A9.6: Summary of AUSTRAC’s property position Location Term Comments Chatswood, Sydney Lease Start Date: varying start dates Lease End Date: 31 May 2012 Total Lease Space: 5,245 sqm Total Lease Cost: approximately $2.4 million per annum Total ASL Supported at this location: 160 William Street, Victoria Lease Start Date: varying start dates Lease End Date: varying end dates between 30 April and 30 May 2013 Total Lease Space: 1,651 sqm Total Lease Cost: approximately $0.8 million per annum Total ASL Supported at this location: 77 Allara Street, Canberra Lease Start Date: 15 August 2007 Lease End Date: 15 August 2014* Total Lease Space: 590 sqm Total Lease Cost: approximately $0.3 million per annum Total ASL Supported at this location: 19 *AUSTRAC advises that this lease was assigned to AusAID in October 2011 after AUSTRAC entered a shared accommodation arrangement with AGD in Barton, ACT. Club Tower, Brisbane Lease Start Date: 1 May 2007 Lease End Date: 30 April 2013 Total Lease Space: 509 sqm Total Lease Cost: approximately $0.3 million per annum Total ASL Supported at this location: 20
Expenditure Analysis: An analysis of the CrimTrac’s 2010-11 expenditure by select activities is as follows: Table A10.5: CrimTrac 2010-11 expenditure by select activities CrimTrac Review Agencies Average IT Expenditure per ASL 2,049 9,973 HR Expenditure per ASL 7,055 3,869 Payroll Expenditure per ASL 1,602 1,285 Property Expenditure per ASL 14,116 28,095 Support Activities (excl Rent)/Total Expenditure 17% 22% Substantive Activities/Total Expenditure 78% 66% Rent/Total Expenditure 5% 12% CrimTrac’s core function is to develop and maintain systems that enable the collection of law enforcement information and the provision of background checking services, as such a large portion of CrimTrac annual expenditure relates to IT. As a result the majority of CrimTrac’s IT expenditure is recorded under substantive activities. The IT expenditure per ASL recorded above relates to licences and support IT for corporate systems and the costs of a web consultant. CrimTrac’s human resource cost per ASL is higher than the review agency average. CrimTrac have indicated causes include a HR systems upgrade and the implementation of a comprehensive learning and development program. This is in addition to the management of higher than average staff turnover and case management requirements. Even allowing for these factors, the Review is not satisfied that CrimTrac’s support services expenditure is fully justified and it has thus recommended that further review and benchmarking of CrimTrac be undertaken (see Chapter 10). Property Analysis: Table A10.6: Summary of CrimTrac’s property position Location Term Comments Lyneham, Canberra Lease Start Date: 1 August 2007 Lease End Date: 31 July 2012 Total Lease Space: 1,961 sqm Total Lease Cost: approximately $0.9 million per annum Total ASL Supported at this location: 0 Dickson, Canberra Lease Start Date: 25 August 2008 Lease End Date: 24 August 2018 Total Lease Space: 3,872 sqm Total Lease Cost: approximately $1.8 million per annum Total ASL Supported at this location: 183 In 2008 CrimTrac staff were located in three separate locations in Canberra: 243 Northbourne Ave, Lyneham – Lease Expiry August 2012
and is required to be settled prior to the May 2012 Budget. The actual amount of appropriation in the forward years will be affected by the resource agreement once finalised and will depend on emerging trends in numbers of personal insolvencies. There are three components to ITSA’s departmental funding: Funding for cost activities – based on fees and charges raised; Variable funding – provided by the Government where full cost recovery cannot be achieved, and the cost of activities are directly linked to changing bankruptcy activity; and Fixed funding – provided by the Government to cover overheads and administration of Proceeds of Crime activities. In prior years, Other Agency Receipts have mainly been received from three sources: reimbursement of funds lent to the Official Trustee, receipts from the sale of bankruptcy data, and proceeds from the sublease of office space to the Department of Infrastructure and Transport in Hobart. Other Agency Receipts do not include fees and charges returned to the Consolidated Revenue Fund. The significant increase in Other Agency Receipts from 2011-12 onwards is a result of the imminent introduction of the PPSR. ITSA will receive fees and charges for registrations, searches and other functions relating to the PPSR. These fees and charges include an allowance for the future replacement of personal property securities assets, as well as an allowance for the repayment of funding provided in the 2010–11 and 2011–12 Budgets to finalise the establishment of the PPSR. That funding was provided on the basis that it will be repaid over the first three years of operation of the PPSR. It is important to note that the estimates in the table above are based on a launch date of October 2011. As the launch has been delayed until early 2012, Other Agency Receipts for 2011-12 are likely to be lower than forecast and the timeframe for repaying the budget for the PPSR will be pushed out. Financial Viability: Actual operating results Actual operating results for the 2008-09 to 2010-11 financial years (based on annual reports) are as follows: Table A13.3: ITSA current operating results Actual (‘000) 08-09 09-10 10-11 Actual Operating Results 52 135 -3,450 The 2008-09 and 2009-10 operating results are not directly comparable with 2010-11. The earlier figures include depreciation funding and expenses. Due to the introduction of Departmental Capital Budgets in 2010-11, the Review has excluded depreciation expenses from the operating result for that year to provide a clearer picture of funding against operating expenses.
23 – Table A23.1: AAT statistics AAT No. applications Applicant success rate No. matters resolved by decision Applicant success rate: by decision Judicial review applications Appellant success at judicial review 2010/11 5437 40% 1275 37% 121 26% 2009/10 5787 44% 1318 35% 102 28% 2008/09 6226 38% 1393 35% 110 30% Table A23.2: VRB statistics VRB No. applications Applicant success rate No. appeals to AAT AAT varied or set aside AAT matters resolved by decision (No.) Applicant success rate: AAT decision Appeals/ Judicial review applications from AAT 2010/11 3275 43.7% 479 44% 145 33% 15 2009/10 3906 39.9% 491 39% 154 29% 11 2008/09 3929 40.4% 616 43% 179 36% 16 Table A23.3: SSAT statistics SSAT No. applications Applicant success rate No. appeals to AAT AAT varied or set aside AAT matters resolved by decision (No.) Applicant success rate: AAT decision Appeals/ Judicial review applications from AAT 2010/11 Not yet available in comparable format Social security: 1649 Child support: 51 Social security: 28% Social security: 444 Social security: 32% Social security: 16 2009/10 Social security: 11203 Child Social security: 26.5% Child Social security: 2077 Child Social security: 27% Social security: 539 Social security: 27% Social security: 16
support: 2664 support: 35.7% support: 70 2008/09 Social security: 13429 Child support: 2890 Social security: 26.4% Child support: 34.5% Social security: 2234 Child support: 32 Social security: 26% Social security: 518 Social security: 30% Social security: 21 Table A23.4: RRT statistics RRT No. applications Applicant success rate No. appeals to AAT AAT varied or set aside Appeals/Judicial review applications from AAT 2010/11 2966 24% AAT review is not available for cases. AAT had 305 migration lodgings in 2009-10, outside the jurisdiction of MRT-RRT. 2009/10 2271 24% 2008/09 2538 19% Table A23.5: MRT statistics MRT No. applications Applicant success rate No. appeals to AAT AAT varied or set aside Appeals/Judicial review applications from AAT 2010/11 10314 41% AAT review is not available for cases. AAT had 305 migration lodgings in 2009-10, outside the jurisdiction of MRT-RRT. 2009/10 8322 45% 2008/09 7422 48% RRT RRT