Committee Secretary Senate Legal and Consititutional Affairs Committee

Dear Senators,

Normally I would not file a late submission, however it was only after I’d read the other submissions that I felt the need to write what I have.

I have written previously to this committee ¹ suggesting that parliamentary processes need to be improved in order to deal with the complexity and volatility of modern society. Perhaps the views expressed in those submissions were too haphazard. This time I will try to be more focused.

The Attorney General has drafted some proposed new laws and asked this committee to review them. You’ve received submissions from the public who can be divided into the usual two groups: Those who make money out of this area and those who don’t. Happily, this time, there has been much more input from the latter group. Kudos to those who encouraged that to happen.

Now that you’ve got all this information, what are you going to do with it? I suggest two clear goals:

1. To distil the most valuable information from the submissions for active consideration.
2. To make people feel that their submissions have been read and understood.

The second point is particularly true in cases where the submissions were made by people not in it for the money – they should feel like their parliament is functioning.

In summary, there needs to be a way of making sense of submissions and making people feel listened to. I have devised a simple, quick and cheap framework for this purpose.

“Submission shakeout”

Submissions sent to this committee seem basically to have the following useful information in them:

1. Who wrote the submission.
2. What facts they assert.
3. What suggestions they have.
4. What they think will be the result of their suggestions.

In relation to item 2, submissions made to this committee are teeming with assertions. The trouble is, once you start to examine every assertion for truth and relevance, you end up creating a lot of work for yourself and end up with more information than when you began. That is at odds with our goal to try to distil useful information, and for that reason, I suggest item 2 should be removed from any “submission shakeout”. That is not to diminish the value of people’s assertions, some of which I have found original and enlightening.

Removing item 2 from the above list leaves us with just three questions that I feel should be applied to each of the submissions:

1. Who wrote the submission.
2. What suggestions they have.
3. What they think will be the result of their suggestions.

A sample of how this might work is presented below, with the first column summarising recommendations and second column containing outcomes that they have suggested.

Non-Custodial Parents Party (Equal Parenting)

Community group advocating equal parenting arrangements

Introduce a rebuttal presumption of joint residency.
Law should consider parents’ rights not just childrens’ rights.
Reduce court secrecy.	Judges etc. would be more accountable.

Queensland Law Society

Represents 13,000 Queensland lawyers

Merge two courts into a single specialist family law court.	Faster and cheaper resolution of disputes. Specialist judges would make less mistakes. Children would be less at risk of family violence.
Keep the specialist appeal court.	Better quality appeal decisions.
Court rules should continue to be decided by a committee of judges not just by the Chief Justice.	Rules of court would be effective everywhere, not just in the building where the Chief Justice works.
More money for courts.	Cases would be heard quicker. Children and families would suffer less. Reduced family violence.

Mr Bill Patterson

Retired economist

Senators should stop dawdling and get to work.	Reduce family-law related suicides. Reduce family spending on lawyers freeing up funds for children’s education etc. Small family businesses remain solvent.
Ignore suggestions to roll back shared parenting provisions.
Implement 2014 Productivity Commission report.	Lower cost to taxpayer.
Set up a Royal Commission into the family courts.	Restore trust in system.

Professor Patrick Parkinson

Law Professor, expert in family law

Ensure there are a minimum number of judges on the Division 1 of the proposed court.	Reduce uncertainty about the future of the higher level, specialist court.
Create an independent body to appoint judges.	The public would have more confidence in the quality of judges.
Ensure only judges experienced in family law hear appeals.	Better quality, more consistent precedents.
Court rules to be decided by a majority of judges rather than being left to the Chief Judge.	Better rules of court. Avoid judges feeling left out.
Tidy up various loose ends in the bill.

On the assumption that you will not be doing a “submission shakeout” on the submissions you’ve received, I will publish the idea on my website, philbachmann.com, and develop it further there.

Phil Bachmann

3 Dec 2018

*This was a submission made to an Australian Government inquiry into the proposal to merge the Family Court and Federal Circuit Court (https://www.aph.gov.au/ParliamentaryBusiness/Committees/Senate/LegalandConstitutionalAffairs/FederalCourts/Submissions)

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¹ Submission 21 & 21.1 https://www.aph.gov.au/ParliamentaryBusiness/Committees/Senate/LegalandConstitutionalAffairs/Cross-examinationofPart/Submissions