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ACCESS TO JUSTICE (CIVIL LITIGATION REFORMS) AMENDMENT BILL 2009

2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Access to Justice (Civil Litigation
Reforms) Amendment Bill 2009
No. , 2009
(Attorney-General)
A Bill for an Act to amend legislation relating to
federal courts, and for related purposes
i Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedule(s) ......................................................................................... 2
Schedule 1--Case management
3
Federal Court of Australia Act 1976
3
Schedule 2--Jurisdiction and appeals
9
Federal Court of Australia Act 1976
9
Schedule 3--Judicial responsibilities
16
Part 1--Main amendments
16
Family Law Act 1975
16
Federal Court of Australia Act 1976
18
Federal Magistrates Act 1999
19
Part 2--Related amendments
22
Administrative Decisions (Judicial Review) Act 1977
22
Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009 1
A Bill for an Act to amend legislation relating to
1
federal courts, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Access to Justice (Civil Litigation
5
Reforms) Amendment Act 2009.
6
2 Commence ment
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Schedules 1
and 2
The 28th day after the day on which this Act
receives the Royal Assent.
3. Schedule 3
The later of:
(a) the start of the 28th day after the day on
which this Act receives the Royal
Assent; and
(b) immed iately after the commencement of
Schedule 17 to the Fair Work
(Transitional Provisions and
Consequential Amendments) Act 2009.
Note:
This table relates only to the provisions of this Act as originally
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Case management Schedule 1
Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009 3
Schedule 1
--
Case management
1
2
Federal Court of Australia Act 1976
3
1 Section 4
4
Insert:
5
alternative dispute resolution process means a procedure or
6
service for the resolution of disputes (other than arbitration or
7
mediation) not involving the exercise of the judicial power of the
8
Commonwealth.
9
2 Section 4
10
Insert:
11
civil practice and procedure provisions has the meaning given by
12
subsection 37M(4).
13
3 Section 4
14
Insert:
15
lawyer means a person enrolled as a legal practitioner of a federal
16
court or the Supreme Court of a State or Territory.
17
4 Section 4
18
Insert:
19
overarching purpose (of the civil practice and procedure
20
provisions) means the overarching purpose set out in subsection
21
37M(1).
22
5 After section 20
23
Insert:
24
20A Powe r of the Court to deal with civil matters without an oral
25
hearing
26
(1) This section applies in relation to any civil matter coming before
27
the Court in the original jurisdiction of the Court.
28
Schedule 1 Case management
4 Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009
(2) The Court or a Judge may deal with the matter without an oral
1
hearing (either with or without the consent of the parties) if
2
satisfied that:
3
(a) the matter is frivolous or vexatious; or
4
(b) the issue or issues on which determination of the matter
5
depends have been decided authoritatively in the case law; or
6
(c) determination of the matter would not be significantly aided
7
by an oral hearing because:
8
(i) there is no real issue of fact relevant to determination of
9
the matter; and
10
(ii) the legal arguments in relation to the matter can be dealt
11
with adequately by written submissions.
12
(3) This section does not limit subsections 20(4) and (6).
13
6 After Part VA
14
Insert:
15
Part VB--Case management in civil proceedings
16
17
37M The overarching purpose of civil practice and procedure
18
provisions
19
(1) The overarching purpose of the civil practice and procedure
20
provisions is to facilitate the just resolution of disputes:
21
(a) according to law; and
22
(b) as quickly, inexpensively and efficiently as possible.
23
(2) Without limiting the generality of subsection (1), the overarching
24
purpose includes the following objectives:
25
(a) the just determination of all proceedings before the Court;
26
(b) the efficient use of the judicial and administrative resources
27
available for the purposes of the Court;
28
(c) the efficient disposal of the Court's overall caseload;
29
(d) the disposal of all proceedings in a timely manner;
30
(e) the resolution of disputes at a cost that is proportionate to the
31
importance and complexity of the matters in dispute.
32
Case management Schedule 1
Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009 5
(3) The civil practice and procedure provisions must be interpreted and
1
applied, and any power conferred or duty imposed by them
2
(including the power to make Rules of Court) must be exercised or
3
carried out, in the way that best promotes the overarching purpose.
4
(4) The civil practice and procedure provisions are the following, so
5
far as they apply in relation to civil proceedings:
6
(a) the Rules of Court made under this Act;
7
(b) any other provision made by or under this Act or any other
8
Act with respect to the practice and procedure of the Court.
9
37N Parties to act consistently with the overarching purpose
10
(1) The parties to a civil proceeding before the Court must conduct the
11
proceeding (including negotiations for settlement of the dispute to
12
which the proceeding relates) in a way that is consistent with the
13
overarching purpose.
14
(2) A party's lawyer must, in the conduct of a civil proceeding before
15
the Court (including negotiations for settlement) on the party's
16
behalf:
17
(a) take account of the duty imposed on the party by
18
subsection (1); and
19
(b) assist the party to comply with the duty.
20
(3) The Court or a Judge may, for the purpose of enabling a party to
21
comply with the duty imposed by subsection (1), require the
22
party's lawyer to give the party an estimate of:
23
(a) the likely duration of the proceeding or part of the
24
proceeding; and
25
(b) the likely amount of costs that the party will have to pay in
26
connection with the proceeding or part of the proceeding,
27
including:
28
(i) the costs that the lawyer will charge to the party; and
29
(ii) any other costs that the party will have to pay in the
30
event that the party is unsuccessful in the proceeding or
31
part of the proceeding.
32
(4) In exercising the discretion to award costs in a civil proceeding, the
33
Court or a Judge must take account of any failure to comply with
34
the duty imposed by subsection (1) or (2).
35
Schedule 1 Case management
6 Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009
(5) If the Court or a Judge orders a lawyer to bear costs personally
1
because of a failure to comply with the duty imposed by
2
subsection (2), the lawyer must not recover the costs from his or
3
her client.
4
37P Power of the Court to give directions about practice and
5
procedure in a civil proceeding
6
(1) This section applies in relation to a civil proceeding before the
7
Court.
8
(2) The Court or a Judge may give directions about the practice and
9
procedure to be followed in relation to the proceeding, or any part
10
of the proceeding.
11
(3) Without limiting the generality of subsection (2), a direction may:
12
(a) require things to be done; or
13
(b) set time limits for the doing of anything, or the completion of
14
any part of the proceeding; or
15
(c) limit the number of witnesses who may be called to give
16
evidence, or the number of documents that may be tendered
17
in evidence; or
18
(d) provide for submissions to be made in writing; or
19
(e) limit the length of submissions (whether written or oral); or
20
(f) waive or vary any provision of the Rules of Court in their
21
application to the proceeding; or
22
(g) revoke or vary an earlier direction.
23
(4) In considering whether to give directions under subsection (2), the
24
Court may also consider whether to make an order under
25
subsection 53A(1).
26
(5) If a party fails to comply with a direction given by the Court or a
27
Judge under subsection (2), the Court or Judge may make such
28
order or direction as the Court or Judge thinks appropriate.
29
(6) In particular, the Court or Judge may do any of the following:
30
(a) dismiss the proceeding in whole or in part;
31
(b) strike out, amend or limit any part of a party's claim or
32
defence;
33
(c) disallow or reject any evidence;
34
(d) award costs against a party;
35
Case management Schedule 1
Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009 7
(e) order that costs awarded against a party are to be assessed on
1
an indemnity basis or otherwise.
2
(7) Subsections (5) and (6) do not affect any power that the Court or a
3
Judge has apart from those subsections to deal with a party's
4
failure to comply with a direction.
5
7 At the end of section 43
6
Add:
7
(3) Without limiting the discretion of the Court or a Judge in relation
8
to costs, the Court or Judge may do any of the following:
9
(a) make an award of costs at any stage in a proceeding, whether
10
before, during or after any hearing or trial;
11
(b) make different awards of costs in relation to different parts of
12
the proceeding;
13
(c) order the parties to bear costs in specified proportions;
14
(d) award a party costs in a specified sum;
15
(e) award costs in favour of or against a party whether or not the
16
party is successful in the proceeding;
17
(f) order a party's lawyer to bear costs personally;
18
(g) order that costs awarded against a party are to be assessed on
19
an indemnity basis or otherwise.
20
Note:
For further provision about the award of costs, see subsections 37N(4)
21
and (5) and paragraphs 37P(6)(d) and (e).
22
8 Section 49
23
Repeal the section, substitute:
24
49 Reserved judgme nts
25
(1) This section applies where judgment is reserved in any proceeding
26
before the Court.
27
(2) If a Judge who heard the proceeding, whether as a single Judge or
28
as a member of a Full Court:
29
(a) prepares his or her judgment; but
30
(b) is not available to publish the judgment;
31
the judgment may be made public by another Judge authorised to
32
do so by the Judge whose judgment it is.
33
Schedule 1 Case management
8 Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009
(3) A judgment made public in accordance with subsection (2) has the
1
same effect as it would have if it were made public by the Judge
2
whose judgment it is.
3
9 Subsection 53A(1)
4
Repeal the subsection, substitute:
5
(1) The Court may, by order, refer proceedings in the Court, or any
6
part of them or any matter arising out of them:
7
(a) to an arbitrator for arbitration; or
8
(b) to a mediator for mediation; or
9
(c) to a suitable person for resolution by an alternative dispute
10
resolution process;
11
in accordance with the Rules of Court.
12
(1AA) Subsection (1) is subject to the Rules of Court.
13
Note:
The heading to section 53A is replaced by the heading "Arbitration, mediation and
14
alternative dispute resolution processes".
15
10 Subsection 53A(1A)
16
Omit "to a mediator", substitute "(other than to an arbitrator)".
17
11 Subsection 53A(1A)
18
Omit "However, referrals", substitute "Referrals".
19
12 Application of amendments
20
The amendments made by this Schedule apply in relation to
21
proceedings commenced before, on or after the commencement of this
22
Schedule.
23
24
Jurisdiction and appeals Schedule 2
Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009 9
Schedule 2
--
Jurisdiction and appeals
1
2
Federal Court of Australia Act 1976
3
1 Subsection 20(2)
4
Omit "Subject to subsections (3) and (5), the", substitute "The".
5
2 After subsection 20(2)
6
Insert:
7
(2A) Subsections (1A) and (2) have effect subject to subsections (3) and
8
(5).
9
3 Subsection 20(3)
10
Omit "If the matter coming before the Court as mentioned in
11
subsection (2) is an application", substitute "Applications".
12
4 Subsection 20(3)
13
Omit "the matter may be heard and determined by a single Judge or by
14
a Full Court.", substitute:
15
must be heard and determined by a single Judge unless:
16
(e) a Judge directs that the application be heard and determined
17
by a Full Court; or
18
(f) the application is made in a proceeding that has already been
19
assigned to a Full Court and the Full Court considers it is
20
appropriate for it to hear and determine the application.
21
5 At the end of subsection 20(4)
22
Add "either with or without the consent of the parties".
23
6 Subsection 20(5)
24
After "subsection", insert "(1A) or".
25
7 Subsection 20(5)
26
After "single Judge", insert "(sitting in Chambers or in open court)".
27
8 After paragraph 20(5)(da)
28
Insert:
29
Schedule 2 Jurisdiction and appeals
10 Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009
(db) in relation to a civil matter, give directions under subsection
1
37P(2); or
2
9 Paragraph 20(5)(e)
3
After "give", insert "other".
4
10 After subsection 20(5)
5
Insert:
6
(5A) An application for the exercise of a power mentioned in
7
subsection (5) must be heard and determined by a single Judge
8
unless:
9
(a) a Judge directs that the application be heard and determined
10
by a Full Court; or
11
(b) the application is made in a proceeding that has already been
12
assigned to a Full Court and the Full Court considers it is
13
appropriate for it to hear and determine the application.
14
11 At the end of subsection 20(6)
15
Add "either with or without the consent of the parties".
16
12 At the end of paragraph 24(1)(a)
17
Add "exercising the original jurisdiction of the Court".
18
13 Subsection 24(1AAA)
19
Repeal the subsection, substitute:
20
(1AA) An appeal must not be brought from a judgment referred to in
21
paragraph (1)(a) if the judgment is:
22
(a) a determination of an application of the kind mentioned in
23
subsection 20(3); or
24
(b) a decision to join or remove a party, or not to join or remove
25
a party; or
26
(c) an order or decision under section 56 about security for the
27
payment of costs; or
28
(d) a decision to adjourn or expedite a hearing or to vacate a
29
hearing date.
30
14 After subsection 24(1A)
31
Insert:
32
Jurisdiction and appeals Schedule 2
Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009 11
(1B) Subsection (1A) is subject to subsection (1C).
1
(1C) Leave to appeal under subsection (1A) is not required for an appeal
2
from a judgment referred to in subsection (1) that is an
3
interlocutory judgment:
4
(a) affecting the liberty of an individual; or
5
(b) in proceedings relating to contempt of the Court or any other
6
court.
7
(1D) The following are taken to be interlocutory judgments for the
8
purposes of subsections (1A) and (1C):
9
(a) a judgment by consent;
10
(b) a decision granting or refusing summary judgment under
11
section 31A.
12
(1E) The fact that there has been, or can be, no appeal from an
13
interlocutory judgment of the Court in a proceeding does not
14
prevent:
15
(a) a party from founding an appeal from a final judgment in the
16
proceeding on the interlocutory judgment; or
17
(b) the Court from taking account of the interlocutory judgment
18
in determining an appeal from a final judgment in the
19
proceeding.
20
15 Subsection 25(1A)
21
Repeal the subsection.
22
16 Subsection 25(1AA)
23
Omit "migration".
24
17 Subsection 25(1B)
25
Omit "Subsections (1A) and (1AA) have", substitute
26
"Subsection (1AA) has".
27
18 Subsection 25(2)
28
Omit "may be heard and determined by a single Judge or by a Full
29
Court.", substitute:
30
must be heard and determined by a single Judge unless:
31
(e) a Judge directs that the application be heard and determined
32
by a Full Court; or
33
Schedule 2 Jurisdiction and appeals
12 Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009
(f) the application is made in a proceeding that has already been
1
assigned to a Full Court and the Full Court considers it is
2
appropriate for it to hear and determine the application.
3
19 At the end of subsection 25(2A)
4
Add "either with or without the consent of the parties".
5
20 Subsection 25(2B)
6
After "single Judge", insert "(sitting in Chambers or in open court)".
7
21 After paragraph 25(2B)(bc)
8
Insert:
9
(bd) give directions under subsection 37P(2); or
10
22 Paragraph 25(2B)(c)
11
After "give", insert "other".
12
23 After subsection 25(2B)
13
Insert:
14
(2BA) In subsection (2B), a reference to an appeal includes a reference to
15
an application of the kind mentioned in subsection (2).
16
(2BB) An application for the exercise of a power mentioned in
17
subsection (2B) must be heard and determined by a single Judge
18
unless:
19
(a) a Judge directs that the application be heard and determined
20
by a Full Court; or
21
(b) the application is made in a proceeding that has already been
22
assigned to a Full Court and the Full Court considers it is
23
appropriate for it to hear and determine the application.
24
24 At the end of subsection 25(2C)
25
Add "either with or without the consent of the parties".
26
25 Subsection 25(5)
27
Repeal the subsection, substitute:
28
Jurisdiction and appeals Schedule 2
Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009 13
(5) Subject to any other Act, the jurisdiction of the Court in an appeal
1
from a judgment of a Court of summary jurisdiction is to be
2
exercised by:
3
(a) a single Judge; or
4
(b) if a Judge considers that it is appropriate for the jurisdiction
5
of the Court in relation to the appeal to be exercised by a Full
6
Court--a Full Court.
7
26 Subsection 25(6)
8
Omit "with respect to which an appeal would lie from a judgment of the
9
Judge to a Full Court of the Court", substitute "(whether or not an
10
appeal would lie from a judgment of the Judge to a Full Court of the
11
Court on the matter)".
12
27 Subsection 25(7)
13
Repeal the subsection.
14
28 Paragraph 26(2)(a)
15
Repeal the paragraph, substitute:
16
(a) if the court stating the case or reserving the question is a
17
court of summary jurisdiction--must be exercised by:
18
(i) a single Judge; or
19
(ii) if a Judge considers that it is appropriate for the
20
jurisdiction of the Court in relation to the matter to be
21
exercised by a Full Court--a Full Court; or
22
29 Subsection 33(2)
23
After "Judge" (first occurring), insert "exercising the original
24
jurisdiction of the Court".
25
30 Subsection 33(2)
26
Omit all the words from and including "However".
27
31 Subsection 33(4)
28
Omit "in relation to an appeal from a judgment of the Federal
29
Magistrates Court".
30
32 After subsection 33(4)
31
Insert:
32
Schedule 2 Jurisdiction and appeals
14 Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009
(4A) An appeal must not be brought to the High Court from a judgment
1
of a Full Court of the Court exercising the original jurisdiction of
2
the Court if the judgment is:
3
(a) a determination of an application of the kind mentioned in
4
subsection 20(3); or
5
(b) a decision to join or remove a party, or not to join or remove
6
a party; or
7
(c) an order or decision under section 56 about security for the
8
payment of costs; or
9
(d) a decision to adjourn or expedite a hearing or to vacate a
10
hearing date.
11
(4B) An appeal must not be brought to the High Court from a judgment
12
of the Court (whether constituted by a Full Court or a single Judge)
13
in the exercise of its appellate jurisdiction if the judgment is:
14
(a) a determination of an application of the kind mentioned in
15
subsection 25(2); or
16
(b) a decision to join or remove a party, or not to join or remove
17
a party; or
18
(c) an order under section 29; or
19
(d) an order or decision under section 56 about security for the
20
payment of costs; or
21
(e) a decision to grant or refuse leave to defend a proceeding; or
22
(f) a decision to reinstate an appeal that was taken to have been
23
abandoned or dismissed; or
24
(g) a decision to extend the time for making an application for
25
leave to appeal; or
26
(h) a decision to adjourn or expedite a hearing or to vacate a
27
hearing date.
28
(4C) The fact that there has been, or can be, no appeal to the High Court
29
from an interlocutory judgment of the Court in a proceeding does
30
not prevent:
31
(a) a party from founding an appeal from a final judgment in the
32
proceeding on the interlocutory judgment; or
33
(b) the High Court from taking account of the interlocutory
34
judgment in determining:
35
(i) an appeal from a final judgment in the proceeding; or
36
(ii) an application for special leave to appeal from a final
37
judgment in the proceeding.
38
Jurisdiction and appeals Schedule 2
Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009 15
33 Application of amendments
1
(1)
The amendments made by items 1 to 11 apply in relation to matters
2
coming before the Federal Court of Australia in the original jurisdiction
3
of the Court on or after the commencement of this Schedule.
4
(2)
The amendments made by items 12 to 27 apply in relation to appeals
5
brought to the Federal Court of Australia on or after the commencement
6
of this Schedule.
7
(3)
The amendment made by item 28 applies in relation to any case stated
8
or question reserved under subsection 26(1) of the Federal Court of
9
Australia Act 1976 on or after the commencement of this Schedule.
10
(4)
The amendments made by items 29 to 32 apply in relation to appeals
11
brought to the High Court from the Federal Court of Australia on or
12
after the commencement of this Schedule.
13
14
Schedule 3 Judicial responsibilities
Part 1 Main amendments
16 Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009
Schedule 3
--
Judicial responsibilities
1
Part 1
--
Main amendments
2
Family Law Act 1975
3
1 Subsection 21B(1)
4
After "ensuring the", insert "effective,".
5
2 Subsection 21B(1)
6
Omit all the words after "business of the Court".
7
3 After subsection 21B(1)
8
Insert:
9
(1A) In discharging his or her responsibility under subsection (1) (and
10
without limiting the generality of that subsection) the Chief Judge:
11
(a) may, subject to this Act and to such consultation with Judges
12
as is appropriate and practicable, do all or any of the
13
following:
14
(i) make arrangements as to the Judge or Judges who is or
15
are to constitute the Court, or the Full Court, in
16
particular matters or classes of matters;
17
(ii) without limiting the generality of subparagraph (i)--
18
assign particular caseloads, classes of cases or functions
19
to particular Judges;
20
(iii) temporarily restrict a Judge to non-sitting duties; and
21
(b) must ensure that arrangements are in place to provide Judges
22
with appropriate access to (or reimbursement for the cost of):
23
(i) annual health assessments; and
24
(ii) short-term counselling services; and
25
(iii) judicial education.
26
4 Subsections 21B(2) and (3)
27
Omit "subsection (1)", substitute "this section".
28
5 At the end of section 21B
29
Add:
30
Judicial responsibilities Schedule 3
Main amendments Part 1
Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009 17
(4) In exercising, or assisting in the exercise of, the functions or
1
powers mentioned in paragraph (1A)(a), the Chief Judge and the
2
Deputy Chief Judge have the same protection and immunity as if
3
they were exercising, or assisting in the exercise of, those functions
4
or powers as, or as members of, the Court.
5
(5) Despite section 39B of the Judiciary Act 1903, the Federal Court of
6
Australia does not have jurisdiction with respect to a matter
7
relating to the exercise by the Chief Judge of, or relating to the
8
Deputy Chief Judge assisting in the exercise of, the functions or
9
powers mentioned in subsection (1A).
10
6 After subsection 22(2)
11
Insert:
12
Judges to be assigned to particular location
13
(2AAA) The commission of appointment of a Judge must assign the Judge
14
to a particular location. The Judge:
15
(a) must not sit at another location on a permanent basis unless
16
the Attorney-General and the Chief Judge consent; and
17
(b) cannot be required to sit at another location on a permanent
18
basis unless the Judge consents (in addition to the consents
19
required by paragraph (a)); and
20
(c) may sit at another location on a temporary basis.
21
(2AAB) In deciding whether to consent as mentioned in
22
paragraph (2AAA)(a), the Chief Judge has the same protection and
23
immunity as if he or she were making that decision as, or as a
24
member of, the Court.
25
(2AAC) Despite section 39B of the Judiciary Act 1903, the Federal Court of
26
Australia does not have jurisdiction with respect to a matter
27
relating to the exercise by the Attorney-General or the Chief Judge
28
of the power to consent as mentioned in paragraph (2AAA)(a).
29
Note 1: The following heading to subsection 22(1) is inserted "Appointment of Judges".
30
Note 2: The following heading to subsection 22(2AA) is inserted "Appeal Division".
31
Note 3: The following heading to subsection 22(2AF) is inserted "General Division".
32
Note 4: The following heading to subsection 22(2AFA) is inserted "Appointment of Deputy
33
Chief Judge or Judge Administrator".
34
Note 5: The following heading to subsection 22(2AG) is inserted "Judge of 2 or more courts".
35
Schedule 3 Judicial responsibilities
Part 1 Main amendments
18 Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009
Note 6: The following heading to subsection 22(3) is inserted "Resignation".
1
Note 7: The following heading to subsection 22(4) is inserted "Style".
2
Federal Court of Australia Act 1976
3
7 After subsection 6(2)
4
Insert:
5
Judges to be assigned to particular location
6
(3) The commission of appointment of a Judge must assign the Judge
7
to a particular location. The Judge:
8
(a) must not sit at another location on a permanent basis unless
9
the Attorney-General and the Chief Justice consent; and
10
(b) cannot be required to sit at another location on a permanent
11
basis unless the Judge consents (in addition to the consents
12
required by paragraph (a)); and
13
(c) may sit at another location on a temporary basis.
14
(3A) In deciding whether to consent as mentioned in paragraph (3)(a),
15
the Chief Justice has the same protection and immunity as if he or
16
she were making that decision as, or as a member of, the Court.
17
(3B) Despite section 39B of the Judiciary Act 1903, the Court does not
18
have jurisdiction with respect to a matter relating to the exercise by
19
the Attorney-General or the Chief Justice of the power to consent
20
as mentioned in paragraph (3)(a).
21
Note 1: The following heading to subsection 6(1) is inserted "Appointment of Judges".
22
Note 2: The following heading to subsection 6(4) is inserted "Resignation".
23
Note 3: The following heading to subsection 6(5) is inserted "Judge of 2 or more courts".
24
Note 4: The following heading to subsection 6(6) is inserted "Style".
25
Note 5: The following heading to subsection 6(7) is inserted "Definition".
26
8 Subsection 15(1)
27
After "ensuring the", insert "effective,".
28
9 Subsection 15(1)
29
Omit all the words after "business of the Court".
30
10 After subsection 15(1)
31
Judicial responsibilities Schedule 3
Main amendments Part 1
Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009 19
Insert:
1
(1AA) In discharging his or her responsibility under subsection (1) (and
2
without limiting the generality of that subsection) the Chief Justice:
3
(a) may, subject to this Act and to such consultation with Judges
4
as is appropriate and practicable, do all or any of the
5
following:
6
(i) make arrangements as to the Judge or Judges who is or
7
are to constitute the Court in particular matters or
8
classes of matters;
9
(ii) without limiting the generality of subparagraph (i)--
10
assign particular caseloads, classes of cases or functions
11
to particular Judges;
12
(iii) temporarily restrict a Judge to non-sitting duties; and
13
(b) must ensure that arrangements are in place to provide Judges
14
with appropriate access to (or reimbursement for the cost of):
15
(i) annual health assessments; and
16
(ii) short-term counselling services; and
17
(iii) judicial education.
18
(1AB) In exercising the functions or powers mentioned in
19
paragraph (1AA)(a), the Chief Justice has the same protection and
20
immunity as if he or she were exercising those functions or powers
21
as, or as a member of, the Court.
22
(1AC) Despite section 39B of the Judiciary Act 1903, the Court does not
23
have jurisdiction with respect to a matter relating to the exercise by
24
the Chief Justice of the functions or powers mentioned in
25
subsection (1AA).
26
Federal Magistrates Act 1999
27
11 Subsection 12(1)
28
After "ensuring the", insert "effective,".
29
12 Subsection 12(3)
30
Repeal the subsection, substitute:
31
(3) In discharging his or her responsibility under subsection (1) (and
32
without limiting the generality of that subsection) the Chief Federal
33
Magistrate:
34
Schedule 3 Judicial responsibilities
Part 1 Main amendments
20 Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009
(a) may, subject to this Act and to such consultation with Federal
1
Magistrates as is appropriate and practicable, do all or any of
2
the following:
3
(i) make arrangements as to the Federal Magistrate who is
4
to constitute the Federal Magistrates Court in particular
5
matters or classes of matters;
6
(ii) without limiting the generality of subparagraph (i)--
7
assign particular caseloads, classes of cases or functions
8
to particular Federal Magistrates;
9
(iii) temporarily restrict a Federal Magistrate to non-sitting
10
duties; and
11
(b) must ensure that arrangements are in place to provide Federal
12
Magistrates with appropriate access to (or reimbursement for
13
the cost of):
14
(i) annual health assessments; and
15
(ii) short-term counselling services; and
16
(iii) judicial education.
17
13 After subsection 12(6)
18
Insert:
19
Protection of the Chief Federal Magistrate in the exercise of
20
functions or powers
21
(6A) In exercising the functions or powers mentioned in
22
paragraph (3)(a) or subsection (4), the Chief Federal Magistrate has
23
the same protection and immunity as if he or she were exercising
24
those functions or powers as, or as a member of, the Federal
25
Magistrates Court.
26
(6B) Despite section 39B of the Judiciary Act 1903, the Federal Court of
27
Australia does not have jurisdiction with respect to a matter
28
relating to the exercise by the Chief Federal Magistrate of the
29
functions or powers mentioned in subsection (3) or (4).
30
14 Application of amendments
31
(1)
The amendments made by this Part, other than items 6 and 7, apply in
32
relation to Judges and Federal Magistrates whether appointed before or
33
after the commencement of the amendments.
34
Judicial responsibilities Schedule 3
Main amendments Part 1
Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009 21
(2)
The amendments made by items 6 and 7 apply in relation to
1
commissions of appointment signed by the Governor-General after the
2
commencement of those amendments.
3
4
Schedule 3 Judicial responsibilities
Part 2 Related amend ments
22 Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 No. , 2009
Part 2
--
Related amendments
1
Administrative Decisions (Judicial Review) Act 1977
2
15 At the end of Schedule 1
3
Add:
4
; (zd) the following decisions under the Family Law Act 1975:
5
(i) decisions of the Chief Judge or the Deputy Chief Judge
6
in the exercise of, or in assisting in the exercise of, the
7
functions or powers mentioned in subsection 21B(1A)
8
of that Act;
9
(ii) decisions of the Chief Judge or the Attorney-General
10
whether to consent as mentioned in paragraph
11
22(2AAA)(a) of that Act;
12
(ze) the following decisions under the Federal Court of Australia
13
Act 1976:
14
(i) decisions of the Chief Justice in the exercise of the
15
functions or powers mentioned in subsection 15(1AA)
16
of that Act;
17
(ii) decisions of the Chief Justice or the Attorney-General
18
whether to consent as mentioned in paragraph 6(3)(a) of
19
that Act;
20
(zf) decisions of the Chief Federal Magistrate in the exercise of
21
the functions or powers mentioned in subsection 12(3) or (4)
22
of the Federal Magistrates Act 1999.
23

 

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