Part 4 Management of the Court

Federal Court of Australia Annual Report 2011-2012

Federal Court Governance

Since 1990 the Court has been self-administering, with a separate budget appropriation and reporting arrangement to the Parliament. Under the Federal Court of Australia Act, the Chief Justice of the Court is responsible for managing the administrative affairs of the Court. The Chief Justice is assisted by the Registrar/Chief Executive Officer of the Court. The Act also provides that the Chief Justice may delegate any of his or her administrative powers to judges, and that the Registrar may exercise powers on behalf of the Chief Justice in relation to the Court's administrative affairs.

In practice, the Court's governance involves two distinct structures: the management of the Court through its registry structure; and the judges' committee structure which facilitates the collegiate involvement of the judges of the Court. Judges also participate in the management of the Court through formal meetings of all judges. The registries and the judges' committees are discussed in more detail below.

Federal Court registry management structure

As outlined in Part 1 of this report, the Court's administration is supported by a national registry structure, with a Principal Registry responsible for managing national issues and supporting the corporate services functions of the Court, and a District Registry in each State and Territory which supports the work of the Court at a local level. A diagram of the management structure of the Court is set out in Appendix 3 on page 118.

Judges' committees

There are a number of committees of judges of the Court, which assist with the administration of the Court and play an integral role in managing issues related to the Court's administration, as well as its rules and practice.

An overarching Policy and Planning Committee provides advice to the Chief Justice on policy aspects of the administration of the Court. It is assisted by standing committees that focus on a number of specific issues in this area. In addition, other ad hoc committees and working parties are established from time to time to deal with particular issues.

An overarching National Practice Committee provides advice on practice and procedure to the Chief Justice and judges. There are also a small number of standing committees that focus on specific issues within the framework of the Court's practice and procedure.

All of the committees are supported by registry staff. The committees provide advice to the Chief Justice and to all judges at the bi-annual judges' meetings.

Judges' meetings

There were two meetings of all judges of the Court during the year, which dealt with matters such as reforms of the Court's practice and procedure, appellate work, native title and judicial education.

Corporate functions

The Corporate Services Branch in the Principal Registry is responsible for supporting the national corporate functions of the Court. The following outlines the major corporate services issues during the reporting year.

Financial management

The Finance Committee, which is made up of judges from each of the registries, as well as the Registrar, oversees the financial management of the Court. The Corporate Services Branch supports the Committee. During 2011–12 the Committee met on three occasions.

Financial accounts

During 2011–12 revenues from ordinary activities totalled $111.102 million. Total revenue, in the main, comprised:

• an appropriation from Government of $86.116 million
• $9.308 million of resources received free of charge, including for accommodation occupied by the Court in Sydney
• $11.112 million of liabilities assumed by other government agencies, representing the notional value of employer superannuation payments for the Court's judges
• $4.566 million from the sale of goods and services.

Total expenses of $115.362 million in 2011–12 comprised: $62.226 million in judges' and employees' salaries and related expenses; $34.679 million in property related expenses; $15.298 million in other administrative expenses; $3.148 million in depreciation expenses and $0.011 million write-down of non-current assets.

Consequently, the net operating result from ordinary activities for 2011–12 was a deficit of $4.260 million. This was primarily a result of a once off adjustment to the value of the Court's liability for long service leave which increased by $0.764m. Leaving this adjustment aside, the Court achieved an operating loss of $0.347 million before taking into account depreciation. Equity decreased from $33.545 million in 2010–11 to $32.687 million in 2011–12.

Table 4.1 – Outcome and Program Statement

The Court's agency resource statement can be found at Appendix 2 on page 117.

Audit and risk management

The Audit Committee met four times during 2011–12. The committee comprises an independent chairperson, four judges and the NSW District Registrar. The Registrar, the Executive Director, Corporate Services and Chief Financial Officer and representatives from the internal audit service provider and the Australian National Audit Office (ANAO) attend committee meetings as observers. During 2011–12 the Audit Committee adopted a new charter.

The Court's internal auditors, O'Connor Marsden and Associates, conducted a resource management audit; Information and Communications Technology (ICT) Controls Review; and a fees and litigants fund audit during 2011–12.

Staff of the ANAO inspected the Court's 2011–12 financial statements and provided an unqualified audit certificate.

The Chief Executive Officer is satisfied that:

• Fraud control plans and fraud risk assessments have been prepared that comply with the Commonwealth Fraud Control Guidelines.
• Appropriate fraud prevention, detection, investigation and reporting procedures and practices that comply with the Commonwealth Fraud Control Guidelines are in place.
• There have been no cases of fraud during 2011–12 to be reported to the Australian Institute of Criminology.

External scrutiny

The Court was not the subject of any reports by a Parliamentary committee or the Commonwealth Ombudsman. The Court was not the subject of any judicial decisions or decisions of administrative tribunals.

Purchasing

The Court's procurement policies and procedures, expressed in the Court's Chief Executive Instructions, are based on the Commonwealth Procurement Guidelines and best practice guidance documents published by the Department of Finance and Deregulation. The Court achieves a high level of compliance against the core principles of achieving value for money through efficient, effective and appropriately competitive procurement processes.

Consultants

During 2011–12, nine new consultancy contracts were entered into involving total actual expenditure of $439 015. In addition, one ongoing consultancy contract was active during the 2011–12 year, involving total actual expenditure of $88 000. Table 4.2 outlines expenditure trends for consultancy contracts over the three most recent financial years.

Table 4.2 – Expenditure trend: Consultancy Contracts

Annual reports contain information about actual expenditure on contracts for consultancies. Information on the value of contracts and consultancies is available on the AusTender website www.tenders.gov.au.

Competitive tendering and contracting

During 2011–12, there were no contracts let to the value of $100 000 or more that did not provide for the Auditor General to have access to the contractor's premises.

During 2011–12, there were no contracts or standing offers exempted by the Chief Executive Officer from publication in the contract reporting section on AusTender.

Information on Consultancy Services

The Court's policy on the selection and engagement of all contractors is based on the Australian Government's procurement policy framework as expressed in the Commonwealth Procurement Guidelines (December 2008) and associated Finance Circulars and guidance documentation published by the Department of Finance and Deregulation.

The main function for which consultants were engaged related to the delivery of specialist and expert services, primarily in connection with the Court's information technology (IT) infrastructure, finance and business elements of the Court's corporate services delivery.

Selection of consultant services was made in accordance with the Guidelines, and was obtained by way of either Open, Select or Direct Source Tendering, which are defined as follows:

Open tender – a procurement procedure in which a request for tender is published inviting all suppliers that satisfy the conditions for participation to submit tenders.

Select tender – a procurement procedure in which the procuring agency selects which potential suppliers are invited to submit tenders.

Direct source tender – refers to a procurement process in which an agency invites a potential supplier or suppliers of its choice to make submissions. Direct sourcing may include a competitive process, for example obtaining quotes. For covered procurements, direct sourcing is permitted only under certain conditions.

Consultancy services are sought where:

(a) skills are not available in the agency

(b) specialised or professional skills are needed

(c) independent research or assessment is needed.

Advertising and marketing services

A total of $37 837 was paid for recruitment advertising services in the reporting period.

The Court did not undertake any advertising campaigns or use market research, polling or direct mail organisations or media advertising agencies in 2011–12.

Human resources

During the reporting year, the Court's Human Resources Section continued to provide strategic, policy and operational support to the Court's registries.

Human Resources staff supported the Court by providing advice on the full range of human resource activities including: managing organisational changes and the implementation of organisational reviews; recruitment and selection activities; workforce planning and organisation development; learning and development; workplace diversity; workplace relations; policy development; remuneration policy; payroll services; and workplace health and safety. Among other initiatives, the Court implemented a new performance management system, based on a capability framework that was developed in close consultation with District Registries.

The Court's approach to human resources issues is characterised by transparency and consultation and, to this end, the National Consultative Committee (NCC) continued to operate effectively through the year. The Court's other consultative forums such as Regional Consultative Committees and the Work Health and Safety Committee also continued to operate, reporting to the NCC. Minutes from all committees are placed on the Court's intranet where they can be readily accessed by staff.

The year also saw the bedding-down of the Court's 2011–14 Enterprise Agreement, which commenced early in July 2011.

Staff in the Court's Human Resources section were closely involved in the management and implementation of Machinery of Government (MOG) changes announced in the 2012 federal budget. These involved the transfer of twenty-four staff involved in either Corporate Services or mediation functions from the National Native Title Tribunal (NNTT) to the Court, under the MOG provisions of the Public Service Act 1999. Other NNTT staff were also transferred to the Court's payroll system.

Staffing Profile

At 30 June 2012, the Court employed 359 employees under the Public Service Act, comprising 209 ongoing full time employees, 19 ongoing part-time employees and 131 non-ongoing employees. The high number of non-ongoing employees is due to the nature of the employment of judges' associates, who are generally employed for twelve months, as well as casual court officers. The Court had an average staffing level of 305.11 during the reporting period. 

Table 4.3 provides an overview of the Court's staffing by location at 30 June 2012. More detailed staffing statistics can be found in Appendix 10 on page 179.

Table 4.3 – Staffing overview by location (actual occupancy at 30 June 2012 – includes full-time and part-time staff)

Note: The Registrar, who is a holder of public office, is not included in this table.

Key:

PR Principal Registry
SES Senior Executive Service officer
FCS Federal Court Staff
CCO Casual Court Officer
FCM Federal Court Manager
FCL Federal Court Legal
NAT National

Includes the following staff:
– National Native Title
– Chambers of Chief Justice
– Appeals

Table 4.4 – Salary ranges by classification level under Enterprise Agreement, AWA or Determination (as at 30 June 2012)

Note: The above salary rates will increase by three per cent from 1 July 2012.

Table 4.5 – Senior Executive Service (SES) as at 30 June 2012

Workplace bargaining

During the reporting period, the Court has relied on determinations under s 24 of the Public Service Act for new SES staff and other employment arrangements not covered by the Court's Enterprise Agreement. 

The Court has thirteen employees who remain on AWA's (nine SES and four non-SES) and four employees on individual s 24 determinations (one SES and three non-SES). 

The Court is aiming to move the above non-SES staff to flexibility agreements under the Enterprise Agreement in 2012–13. Similarly, given existing SES AWAs expired on 30 June 2012, the Court will be looking to move SES staff on AWAs to common law contracts and s 24 determinations in the coming year.

Performance Pay

There were no performance pay arrangements in 2011–12.

Work Health and Safety

The Court's health and safety practices continued to ensure that its ability to meet business objectives was not compromised by workplace health issues. In addition, the Court continued to pursue a range of proactive workplace heath measures as detailed below. Average days of unplanned leave per staff member for 2011–12 was 5.76, compared with 7.41 in 2010–11. There were three claims for workers compensation in 2011–12 compared with four in 2010–11.

More generally, Court management actively worked with the Court's Work Health and Safety (WHS) Committee to maintain and where possible improve health and safety in the workplace. A particular area of focus continues to be ensuring that the Court complies with its responsibilities under the Work Health and Safety Act 2011 (WHS Act). Other specific measures included:

• arranging regular meetings of the National WHS Committee and other consultative forums such as the National Consultative Committee and Regional Consultative Committees, all of which have a significant WHS focus
• continuing to conduct regular workplace inspections during 2011–12 in accordance with a check-list developed in consultation with the WHS Committee
• making available annual health checks and flu shots for all staff, provided for in the Enterprise Agreement (currently used by forty per cent of staff)
• providing access to eyesight testing and reimbursement for spectacles where needed for screen-based work
• continuing to provide access to the Court's Employee Assistance Program
• encouraging health and fitness-related activities by providing funding via the Court's Health and Fitness policy.

During the reporting year, no provisional improvement notices were issued under s 90 of the WHS Act nor were any enforcement notices issued under Part 10. There were no incidents under ss 83–86 of the WHS Act whereby any employee ceased to work due to a reasonable concern that to carry out the work would expose the employee to serious risk. There were no notifiable incidents that required the giving of a notice under s 38 of the WHS Act. 

The Court continued to manage its workers compensation cases proactively throughout the reporting period.

Workplace Diversity

The Court remains strongly committed to diversity in the workplace and has developed a wide range of flexible employment conditions with the aim of accommodating the needs of a diverse range of staff. These conditions have assisted the Court in competing with private sector, and other public sector, employers in attracting and retaining employees in key areas, for example legal staff.

The Court's human resource policies actively foster a workplace that is free from discrimination and harassment and is characterised by high levels of employee engagement and consultation. Training sessions on workplace harassment and bullying were conducted in all Court Registries during 2011–12.

The Court continued to build upon strategies in its Workplace Diversity plan. This included developing and finalising an Indigenous Employment Strategy, with the aim of increasing the number of Indigenous employees in the Court.

The Court also continued to actively participate in the Employers Disability Network's 'Stepping Into Law' program via the engagement of legal interns who have a disability. Feedback from interns has been very positive with most reporting they believe the placement will improve their prospects of pursuing a career in the law. The Court is hoping to continue with the program in 2012–13, subject to funding constraints. 

Workforce planning

During 2011–12, Human Resources staff continued to work actively on workforce planning and organisation development projects. Specific workforce planning issues include ensuring that Court employees, such as casual court officers, have the technological skills needed to work in an eCourt environment. Another challenge is to ensure that the Court's organisational structures and work practices are developed in a way that complements its eServices initiatives.

To this end Human Resources staff worked closely with the Court's eServices team to assist with the identification of future workforce requirements, and organisational structures, to support proposed changes to work practices.

As outlined in more detail under 'Training and development', Human Resources staff also worked with registries to develop a capability framework, based on five core capability streams. These capability streams now underpin the Court's learning and development activities and were the focus of new performance management and recruitment and selection policies, and processes, which were developed in 2011–12.

Retention strategies

The Court has a range of strategies in place to attract and retain staff including flexible employment conditions and flexibility agreements under the Enterprise Agreement. The Court continued to refine these through 2011–12 and modify them as required to meet specific issues and cases. Some issues addressed included the attraction and retention of legal staff and measures to meet the needs of skilled staff approaching retirement.

Work life balance

As noted already, the Court's Enterprise Agreement 2011–14, and a range of other human resources policies, provide flexible working arrangements to help employees balance their work and other responsibilities, including young families and ageing parents. The conditions available include access to part-time work, job sharing, flexible leave arrangements and purchased leave.

The Court also provides a wide range of other family-friendly initiatives including improved parental and adoption leave arrangements and 'homework' rooms or similar appropriate facilities for staff with school aged children.

Reward and recognition

The Court encourages and recognises exceptional performance through its annual National Excellence Service Award. The award is used to recognise the work of both individual staff and teams and is presented by the Chief Justice each February around the anniversary of the Court's Foundation Day of 7 February 1977. This year's award ceremony took place in the Victorian Registry on 16 February 2012.

The Court also introduced a program for recognising staff as they reach ten, fifteen, twenty and more years of employment in the Court.

Training and development undertaken and its impact

During 2011–12 the Court offered a range of options to assist employees develop and improve their knowledge and skills, ensuring they have the capabilities needed now and for the future.

A national training program for all client service staff titled 'Managing Difficult Interactions with Self Represented Litigants' was one of the significant training programs rolled out to all registries from late 2011 finishing in June 2012. The presenter was Dr Rosemary Purcell, a Consultant Forensic Psychologist who has also implemented similar training in a number of other jurisdictions (Supreme, District, Family and Magistrates Courts, and various State Tribunals).

The Court also facilitated a number of professional development activities for registrars from March to June this year and these will continue into the future. The activities were primarily information sessions aimed at maintaining the mediation accreditation of the Court's Deputy District Registrars. The sessions were presented by subject matter experts and linked nationally via video conference. Registrars from the Administrative Appeals Tribunal and the Western Australian Supreme Court also attended some of these sessions. Topics included 'The Role of the Barrister in Mediation', 'Mediating in a Regulatory Environment' and 'What Makes a Good Negotiator?'

More generally, training was carefully targeted towards the development of essential core capabilities, as identified in the Court's capability framework. The Court spent $59 336 on external training during the reporting period. Other internal presentations included sessions covering the Work Health and Safety Act and related issues such as workplace bullying and harassment.

The Court's study assistance policy continued to operate and provided staff with leave and financial assistance to pursue approved tertiary studies. During the reporting period $45 964 was reimbursed to staff undertaking studies under the policy.

Disability Reporting Mechanisms

Since 1994, Commonwealth departments and agencies have reported on their performance as policy adviser, purchaser, employer, regulator and provider under the Commonwealth Disability Strategy. In 2007–08, reporting on the employer role was transferred to the Australian Public Service Commission's State of the Service Report and the APS Statistical Bulletin. These reports are available at www.apsc.gov.au. From 2010–11, departments and agencies are no longer required to report on these functions.

The Commonwealth Disability Strategy has been overtaken by a new National Disability Strategy which sets out a ten year national policy framework for improving life for Australians with disability, their families and carers. A high level report to track progress for people with disability at a national level will be produced by the Standing Council on Community, Housing and Disability Services to the Council of Australian Governments and will be available at www.fahcsia.gov.au. The Social Inclusion Measurement and Reporting Strategy agreed by the Government in December 2009 will also include some reporting on disability matters in its regular How Australia is Faring report and, if appropriate, in strategic change indicators in agency Annual Reports. More detail on social inclusion matters can be found at
www.socialinclusion.gov.au.

Property management

The Court occupies law court buildings in every Australian capital city. The buildings are all shared with other jurisdictions and are all owned by governments.

• Court buildings in Brisbane, Canberra, Melbourne, Hobart, Adelaide and Perth are leased from the Commonwealth through the Department of Finance and Deregulation. The Court, along with other occupying jurisdictions, contributes funding to cover rent, maintenance, operation and utility costs. These arrangements are currently under review by the Department of Finance and Deregulation.
• In Sydney, the Law Courts Building at Queens Square is owned by a private company – Law Courts Limited. In turn, that company is jointly owned by the Commonwealth and NSW State governments. In contrast to the Commonwealth owned buildings, the Court does not pay rent, outgoings or utility costs.
• The Court also leases a small area in the Northern Territory Supreme Court Building in Darwin.

Law Court Building Reviews

The Court, in collaboration with the Family Court and the Federal Magistrates Court, has decided to conduct a review of each Commonwealth Law Court (CLC) building. The purpose is to analyse utilisation of building facilities; identify opportunities for improvement/rationalisation and identify opportunities for increased sharing of spaces and or development of flexible spaces. To date reviews have been completed in Brisbane and Melbourne.

Darwin Accommodation

Negotiations were completed for a new Memorandum of Understanding with the Northern Territory Supreme Court. The new MOU will extend the Court's occupancy of space within the NTSC building in Darwin.

National Native Title Tribunal Integration

During the year the Government decided that the financial administration of the National Native Title Tribunal (NNTT) would be undertaken by the Court. This included administration of the NNTT's property and leases. Savings have been achieved by accommodating the NNTT's Sydney staff within the Law Courts Building in Queens Square and by allowing a lease to lapse in Adelaide.

New arrangements for CLCs

The Court has been negotiating with the Department of Finance and Deregulation regarding new arrangements for managing Commonwealth Law Court buildings. The buildings are to be divided into two areas – 'Non-Office Areas' – courts, chambers, public areas etc and 'Usable Office Areas', mainly registry and other office space. Heads of Agreement were signed by the Court and other jurisdictions in January 2012; and agreement was reached to transfer funding from the Court to Department of Finance and Deregulation from 1 July 2012.

The 'Non-Office Areas' are to be managed directly by the Department of Finance and Deregulation, while each jurisdiction will be responsible for its 'Usable Office Areas'. Separate Memorandums of Understanding are to be negotiated with each jurisdiction to cover 'Usable Office Areas' and licences will be issued to allow access to 'Non-Office Areas'. At the time of writing negotiations were progressing.

Security

In the course of the year the Court participated in a security risk assessment of the Commonwealth Law Court buildings. The Court is a currently a tenant in six of those buildings.

The risk assessment has been completed and recommendations made by the assessment form the basis for ongoing work by the National Law Courts Buildings Management Committee.

The Court has also completed an internal audit of security arrangements. The major recommendation was that the Court develop a consolidated security plan. The Court is considering all recommendations.

These projects form part of the ongoing work by the Court to develop security policies and other documents that comply with its obligations under the Government's Protective Security Policy Framework.

Environmental management

The Court provides the following information as required under s 516A of the Environmental Protection and Biodiversity Conservation Act 1999.

The Court, together with other jurisdictions in shared premises, seeks to reduce the impact of its operations on the environment through the following measures:

• Environmental Management Systems are in place in all buildings to minimise the consumption of energy, water and waste.
• The Court has established a National Environment Committee with sub-committees in most registries. The committee seeks to raise staff awareness of workplace environment issues.
• The Court has developed a National Environmental Initiatives Policy which encourages staff to adopt water and energy savings practices.
• During the year audio visual systems were reviewed particularly those with separate airconditioning. 
  Where possible these systems were reprogrammed so they turned off automatically when not in use and this enabled the air conditioning to be also shut down when not required.

Technology services

The judges' Information Technology (IT) Committee oversees the Court's technology services. During 2011–12 the key projects in this area included the following.

Migration of WAN services to AAPT (under Whole of Government arrangements)

Following a tender evaluation run under the auspices of the Department of Finance and Deregulation the Court selected AAPT to supply WAN services across Australia. This new service will provide substantially larger bandwidth for approximately the same cost as the existing service and is expected to be completed in early August 2012.

IT Security

Following the appointment of a new IT Security Manager the Court has implemented an IT Security Awareness Program for all staff and is addressing the Defence Signals Directorate's top four Mitigation Strategies. In addition encryption is being piloted on the Court's laptop computers and mobile device management and secure containers are being implemented on the Court's tablet devices.

Replacement of Private Automatic Branch Exchanges (PABXs)

Under a joint contract with the Family Court of Australia and VOIP Pty Ltd the Court has continued to replace ageing PABXs in each capital city with only Sydney and Darwin yet to be migrated across to the new Alcatel hardware.

Implementation of Citrix

The Court has completed the pilot implementation of Citrix and is awaiting the migration to the AAPT WAN to deploy Citrix to the desktop. Once completed Citrix will also provide Secure Remote Logon via the Citrix Gateway and data encryption via Citrix is being considered to meet new government security standards.

Server virtualisation

The Court is progressively migrating its physical servers into a virtual environment using VMware with all new servers that are required also being virtualised. Once completed this will substantially reduce leasing and software charges in addition to requiring a smaller footprint in the commercial data centre.

Library and Information Services

The Court continued to maintain a national library network, which provides a comprehensive library service to judges and staff of the Court. In Adelaide, Brisbane, Hobart, Melbourne and Perth library access was also available to the legal profession and self represented litigants.

National Native Title Tribunal Library

Planning commenced on the transfer of library services from the NNTT to the Federal Court to commence from 1 July 2012.

Library Databases

The integrated library management system, including the catalogue, was upgraded and migrated to an external hosting environment.