Corporate Plan 2020-2021
The three Courts and the Tribunal undertake regular reviews of their operating environment, challenges and risks to determine performance goals and operational plans each year. A review of the external environment suggests that the key environmental drivers are government policy and legislative change, technological change, and social and economic change.
COVID-19 has also had a profound impact on our environment at all levels and will continue to do so over the four years of this plan as we capture our lessons learned and apply this knowledge to build and improve on existing resources, products and services. Supporting the delivery of the Government’s COVID-19 recovery agenda is another important priority for the Courts and the Tribunal. This includes workforce planning and capability actions and continuing digital transformation and information and communications technology reform to support the delivery of Court and Tribunal services.
Government policy and legislative change
Government policy and legislative change can affect the volume and type of workloads, and jurisdiction.
As a result, the Courts and the Tribunal need agile and flexible resources and systems to ensure we can respond to change in the fastest and most cost effective way.
The announcement of additional efficiency dividends across the Public Sector in May 2019, in conjunction with each Courts’ objective to provide enhanced access to justice, has resulted in the need to deliver more services at a reduced cost. This has put significant pressure on Court and Tribunal budgets and will require careful management and prioritisation of resourcing over the next four years.
Other policy and legislative factors that could impact our environment over the period of this plan include the following:
- In its response to the Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, released by the Treasurer on 4 February 2019, the Government announced that it would expand the Federal Court’s jurisdiction in relation to criminal corporate crime. Extending the Federal Court’s jurisdiction would boost the overall capacity within the Australian court system to ensure the prosecution of financial crimes does not face delays because of heavy caseloads in the courts. While it was anticipated that legislative amendments to implement the expansion of the Court’s jurisdiction would be introduced into Parliament in 2019–20, delays to legislative programs occasioned by the COVID-19 pandemic response have meant that the amendments are expected to be introduced in 2020–21.
- The Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 were introduced on 5 December 2019 after the previous Bills lapsed on the Parliament being prorogued on 11 April 2018 for the 2019 general election. These Bills proposed significant structural change to the Courts, similar to the 2018 Bills, but with some notable changes including the Appellate Division remaining within the Family Court rather than sitting within the Federal Court. The Bills were referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 20 November 2020. Subject to the passage of legislation, such structural reform will have a substantial impact on the Family Court and the Federal Circuit Court. It would see the unification of the administrative structure of the Family Court and the Federal Circuit Court into the ‘Federal Circuit and Family Court of Australia’ and is designed to ensure families are able to have their matters dealt with as quickly, efficiently and as cost effectively as possible.
- The Family Court and the Federal Circuit Court are focused on harmonising family law rules, procedures and practices, and moving to a common case management approach. The Courts have fundamentally different approaches to their case management of like-cases. Significant progress has been made on the harmonisation of family law rules and case management procedures through the work of the Joint Rules Harmonisation Working Group, comprising an independent Chair, the Hon. Dr Chris Jessup QC, two supporting barristers, and a Joint Committee comprising judges of both Courts. Additional funding has been provided to assist the Courts with these critical internal reforms.
- The Australian Law Reform Commission (ALRC) conducted a wide-ranging review into the family law system. The final report of the ALRC, delivered in March 2019, recommended significant reforms of relevance to the family law courts.
- A further inquiry into the family law system was announced in September 2019 when the Joint Select Committee on Australia’s Family Law System was appointed by resolution of the Senate and House of Representatives on 18 and 19 September 2019 respectively. The terms of reference direct the Committee to examine a number of aspects of the family law system and the Committee is due to report on 7 October 2020.
- On 4 June 2020, the House of Representatives Standing Committee on Social Policy and Legal Affairs announced an inquiry into family, domestic and sexual violence. This inquiry was called for by the Minister for Women Senator the Hon. Marise Payne and Minister for Families and Social Services Senator the Hon. Anne Ruston. The terms of reference specifically include the adequacy of the evidence base around the prevalence of domestic and family violence, and data collection from institutions including the Courts.
- The Government had long signalled its intent to move forward on a range of proposed reforms to the Native Title Act 1993 (Cth). In October 2018, the Attorney-General and Minister for Indigenous Affairs released exposure drafts of the Native Title Legislation Amendment Bill 2018 and the Registered Native Title Bodies Corporate Legislation Amendment Regulations 2018, for public comment. The proposed reforms intended to improve the native title system for all parties by:
- streamlining claims resolution and agreement-making processes
- supporting the capacity of native title holders through greater flexibility around internal decision making
- increasing the transparency and accountability of prescribed bodies corporate (the corporations set up to manage native title) to the native title holders
- improving pathways for dispute resolution following a determination of native title, and
- ensuring the validity of section 31 agreements in light of the Full Federal Court’s decision in McGlade v Native Title Registrar & Ors  FCAFC 10.
The exposure draft of the Native Title Legislation Amendment Bill 2018 canvassed a new dispute resolution function for the Tribunal. The Bill was introduced into Parliament on 21 February 2019. It progressed as far as a second reading in the House of Representatives, before Parliament was prorogued for the general election. The Bill lapsed, but was subsequently re-introduced into Parliament on 17 October 2019, as strong support remains for the reforms to be enacted by the Government. The Bill was referred to Senate Legal and Constitutional Affairs Committee, which is due to provide its Report on 19 August 2020.
The Courts and the Tribunal have an ongoing commitment to relentless improvement, with many programs to improve efficiency already in place.
Technological change continues to play a significant role in driving strategy, however the COVID-19 global pandemic necessitated the acceleration of our digital transformation agenda and will continue to guide our decisions. The Family Court and the Federal Circuit Court responded to the COVID-19 pandemic through key initiatives such as the national electronically based COVID-19 List. These rapid technological changes have provided greater access to justice, improved safety for vulnerable litigants and more efficiently and effectively utilised judicial and registrar resources on a national basis. However, while technological advances provide opportunities to improve the experience of court users and automate processes and increase efficiency, they also create significant pressure on resourcing and funding ongoing development.
The rollout of Microsoft Teams in April 2020 facilitated remote hearings and electronic alternative dispute resolution and assisted the Courts and the Tribunal to continue to provide access to justice while adhering to government restrictions. Importantly, these technological advancements have created innovative alternatives for the delivery of Court and Tribunal services moving forward.
In family law, a significant improvement was the implementation of the Digital Court File in April 2020, allowing the Court to create and access all court files electronically from any location around the country.
The challenge for the entity will be to capture key learnings from COVID-19 and refocus our priorities and programs accordingly to support the Government’s recovery agenda and to better support our litigants and stakeholders. The Courts and the Tribunal are already well advanced in the digital space, and further work will be conducted over the life of this plan to embrace and expand these new technologies. This includes artificial intelligence to improve service delivery, redesigning the way we work through remote access technology and taking advantage of the benefits of digital litigation, and consolidating services and reducing costs. Additional challenges will include accuracy, data security and timeliness of information provided through these platforms.
In 2020, the Family Court and Federal Circuit Court are launching the Lighthouse risk screening and triage pilot. The Project will utilise a bespoke, custom built web application to risk screen and triage all new parenting only applications into three levels of risk, assisting the Courts with early identification of family safety risks. Cases will then be directed to appropriate case management pathways, safety planning and service referrals. High risk cases will be allocated to a dedicated high risk list, the Evatt List, for case management by specialised and highly experienced judges, registrars and family consultants. This important project aligns with the Courts’ focus on protecting vulnerable children and parties, particularly in the context of family violence, and delivering positive public safety and health outcomes.
Social and economic change
The COVID-19 pandemic has caused significant social and economic impact that will have a lasting effect on the Courts and the Tribunal, the profession, litigants and other stakeholders.
It is expected that this impact will continue to be felt by the Courts and the Tribunal for many years.
The impact has been felt particularly in the family law jurisdiction, where stay-at-home restrictions and the economic ramifications of the pandemic have placed additional pressures on families already dealing with separation and co-parenting and led to an increase in urgent applications and allegations of family violence.
The expectations and types of court users, clients and stakeholders will continue to change over the next four years. The ongoing development of tailored services and communications, convenience and personalisation are now expected by the stakeholder groups serviced by the Courts and the Tribunal. While technology provides a lower cost option to meet this expectation, defining stakeholder needs and developing tailored responses creates significant workload.
Business, governments and commercial organisations also expect the legal profession to conduct business with them electronically. The Courts and the Tribunal are positioning themselves to continue to respond to this expectation and identify the most effective technology platforms to address their needs. For the Federal Circuit Court and the Tribunal, this also includes maintaining a balance between leveraging the benefits of technology to improve access, but also ensuring it meets the needs of clients in remote areas where access to technology can be not only cost prohibitive, but more importantly, inaccessible in some areas. However, the technological achievements and the work of the Courts and the Tribunal throughout the COVID-19 pandemic has demonstrated that widely available, user-friendly technology can facilitate access to justice in remote and regional locations.
The work of the Courts has also been impacted generally by economic and social change. For example, judge’s workloads have increased as a result of rises in the number of unrepresented litigants and, in the Federal Court, class actions. In addition, the Federal Circuit Court has seen a significant rise in migration filings that is placing a strain on that Court. This trend is expected to continue over the four years of this plan.
The native title system continues to mature, with the Tribunal impacted by the ongoing increase in the determination of native title claims. This has placed greater emphasis on the challenges facing Prescribed Bodies Corporate and how native title holders can leverage economic development from the recognition of their native title rights and interests. The High Court‘s decision in Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples  HCA 7 (Timber Creek Compensation Claim) has created a focus on compensation applications, which is expected to translate into increased workloads for the Tribunal over the period of this plan.
Community awareness and focus on matters involving family violence and allegations of child abuse remains high, with resulting impacts on the Family Court and the Federal Circuit Court. This is reflected by the recent establishment of the House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry into family, domestic and sexual violence. The Courts are focused on appropriately identifying and handling matters involving allegations of child abuse and family violence through a number of core projects, including the harmonisation of the notice of risk, information sharing with states and territories, and the Lighthouse Project.