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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ACCESS TO JUSTICE (CIVIL LITIGATION REFORMS)
AMENDMENT BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
Abbreviations used in the Explanatory Memorandum
Bill Access to Justice (Civil Litigation Reforms) Amendment Bill 2009
Court Federal Court of Australia
Federal Court Act Federal Court of Australia Act 1976
Rules of Court Federal Court Rules
ACCESS TO JUSTICE (CIVIL LITIGATION REFORMS) AMENDMENT BILL 2009
GENERAL OUTLINE
This Bill amends the Federal Court of Australia Act 1976 to strengthen and
clarify the case management powers of the Federal Court to ensure more
efficient civil litigation. It also streamlines the appeals pathways for
civil proceedings, and clarifies the powers of judicial officers of the
federal courts, particularly the heads of each federal court.
A key objective of the reforms is to bring about a cultural change in the
conduct of litigation so that, at the same time as resolving disputes
justly, the following considerations are at the forefront:
. focussing the Court, parties and their lawyers' attention on resolving
disputes as quickly and cheaply as possible
. reducing the costs of litigation
. allocating resources in proportion to the complexity of the issues in
dispute
. avoiding unnecessary delays, and
. management of the Court's judicial and administrative resources as
efficiently as possible.
Schedule 1: Case management
1. An effective and accessible civil justice system should be a system
where people are able to resolve their disputes quickly, efficiently and
fairly. However, a number of recent high profile lengthy cases (such as
Seven Network Ltd v News Ltd [2007] FCA 1062 and Bell Group Ltd (in
liquidation) v Westpac Banking Corporation [No 9] [2008] WASC 239) have
highlighted the need for courts to have powers to ensure the use of
public resources are proportionate to the issues in dispute. This is
essential for ensuring access to justice for all court users.
2. The Bill will amend the Federal Court Act to introduce case management
and procedural reforms. The amendments introduce an overarching
obligation upon the Court, the parties to litigation and legal
practitioners to facilitate the just resolution of disputes according to
law and as quickly, inexpensively and efficiently as possible. They also
clarify the kinds of directions the Court can make to control the
progress and conduct of proceedings.
3. This will provide clear legislative direction and support to judges so
that they can confidently employ active case management powers.
Particular concern has been expressed about the Court's powers to
actively case manage following the High Court's decision in State of
Queensland v J L Holdings Pty Ltd (1997) 141 ALR 353. In this case, the
Court stated that the attainment of justice is a court's ultimate aim,
and case management could not supplant that. This decision has led to a
restrictive interpretation by the courts of what is in the interests of
justice, and has made judges more cautious about considering the need to
effectively and efficiently manage the court's overall workload.
4. Case management powers with a statutory foundation will greatly assist
in addressing this problem. Providing for an overarching purpose of
civil practice and procedure provisions will ensure that the Court
considers broader aims than simply the interests of justice between the
parties. The provisions will make it clear that case management is a
relevant consideration in the attainment of justice.
5. The kinds of directions the Court may make to control the progress and
conduct of proceedings would include limiting the number of witnesses
called or the number of documents that may be tendered in evidence. The
Court may also consider whether to refer the matter to alternative
dispute resolution. The consequences that the Court may impose for
failure to observe these directions is also outlined, including requiring
a party to pay all or part of another party's costs.
6. The Court will also have discretion to impose costs where a party fails
to act consistently with the overarching purpose. Existing section 43
provides a general discretion for the Court to award costs. This section
will be amended to give greater clarity to the types of cost orders the
Court can make. This flexibility will enable the Court to make
appropriate orders in the myriad of different cases which come before it.
7. Similar case management amendments were implemented in New South Wales
in 2005 by the New South Wales Civil Procedure Act 2005. That Act
contains governing provisions relating to case management and section 56
states that the overriding purpose of that Act is to facilitate the just,
quick and cheap resolution of the real issues in the proceedings.
8. The present amendments will complement the Court's existing use of the
docket system (where one judge is assigned to manage each case) and will
improve access to justice.
Schedule 2: Exercise of the jurisdiction of the Federal Court and appeals
9. Schedule 2 to the Bill amends the Federal Court of Australia Act 1976 to
provide for more streamlined appeals pathways to reduce confusion for
litigants and aid the Court in the efficient management of its resources.
10. This schedule forms part of the Government's wider agenda to achieve
the just resolution of disputes in the Federal Court as quickly,
inexpensively and efficiently as possible.
11. The amendments are intended to streamline appeals pathways and provide
the Court with greater flexibility in dealing with appeals and related
applications by:
a) providing for similar appeals pathways from decisions of similar
courts
b) providing additional instances where a single Judge may hear and
determine a matter and make decisions about the conduct of a matter
c) removing any suggestion that a party may choose whether particular
applications are heard by a single Judge or Full Court
d) clarifying appeals pathways from interlocutory decisions
e) providing that an interlocutory decision may be listed as one of the
grounds for appealing a final decision, even if there is no right of
appeal from the interlocutory decision
f) providing for similar appeals pathways from decisions of a single
Judge and Full Court exercising appellate jurisdiction, and
g) providing that a single Judge can refer a difficult question to a
Full Court in all circumstances.
Schedule 3: Judicial responsibilities
12. This Schedule amends the Federal Court of Australia Act 1976, the
Family Law Act 1975 and the Federal Magistrates Act 1999 to clarify the
powers of the Chief Justices of the Federal Court and the Family Court
and the Chief Federal Magistrate, with the object of enhancing public
confidence in the administration of justice. Australia has a judiciary
of the highest calibre and these amendments will further enhance the
reputation of the federal judiciary.
13. This Schedule contains amendments in three main areas which involve:
(1) broadening the responsibilities of the head of each federal court to
ensure the 'effective' discharge of the business of the court, in addition
to their current powers to ensure 'the orderly and expeditious' discharge
of the business of the court.
(2) identifying specific powers and responsibilities of the head of each
federal court to ensure the effective, orderly and expeditious discharge of
the business of the court including:
i) the power to make arrangements regarding the constitution of
the court, in particular matters or classes of matters
ii) the power to assign particular caseloads, classes of cases or
functions to particular Judges
iii) the power to temporarily restrict a Judge to non-sitting
duties, and
iv) the responsibility for ensuring that judicial officers have
appropriate access to annual health checks and short-term
counselling services and judicial education.
This extends work already undertaken by the judiciary to provide
comprehensive judicial education and support to members. It clarifies the
powers of the heads of court to manage the workload of the court.
(3) clarifying the role of the head of court in determining the location
where Judges sit. This amendment does not apply to the Federal Magistrates
Court as s 12 of the Federal Magistrates Act provides that the Chief
Federal Magistrate may assign a Federal Magistrate to a particular location
or registry with the approval of the Attorney-General.
FINANCIAL IMPACT
There is no direct financial impact on Government revenue from this Bill.
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the Bill to be cited as the Access to Justice
(Civil Litigation Reforms) Amendment Act 2009.
Clause 2 - Commencement
2. This clause provides that most of the Act commences 28 days after Royal
Assent. One exception is schedule 3 - Judicial responsibilities, which
will commence either immediately after schedule 17 to the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 or 28
days after Royal Assent (whichever is the later of the two).
3. The 28 day delay will allow time for the Rules of Court to be amended so
that they are consistent with the new provisions in the Federal Court
Act.
Clause 3 - Schedule(s)
4. This clause provides that the Schedules to the Bill will amend the Acts
set out in those Schedules in accordance with the provisions set out in
each Schedule.
SCHEDULE 1 - CASE MANAGEMENT
Federal Court of Australia Act 1976
Item 1 - Section 4
5. Item 1 inserts a new definition of 'alternative dispute resolution
process' into the definitions section of the Federal Court Act. It
provides that alternative dispute resolution is a procedure for resolving
disputes not involving the exercise of the judicial power of the
Commonwealth. This might include processes such as conciliation, neutral
evaluation or case appraisal. The definition does not include
arbitration or mediation as these are specifically dealt with by
subsection 53A(1) (which is amended at item 9).
Item 2 - Section 4
6. Item 2 inserts a new definition of 'civil practice and procedure
provisions' in the definitions section of the Federal Court Act. The
term 'civil practice and procedure provisions' is defined in the new
subsection 37M(4) as both Rules of Court and provisions in the Federal
Court Act or other Acts dealing with practice and procedure in civil
proceedings (not criminal law proceedings).
Item 3 - Section 4
7. Item 3 inserts a new definition of 'lawyer' in the definitions section
of the Federal Court Act. The definition is the same as the definition
found in the Criminal Code Act 1995, which is 'a person enrolled as a
legal practitioner of a federal court or the Supreme Court of a State or
Territory'.
8. This definition is necessary because new section 37N at item 6
introduces a duty on parties to act consistently with the overarching
purpose. A party's lawyer will need to assist the party to comply with
the duty. In practice, this will require a lawyer to conduct a case
taking into account the duty on the party, and advise their client if
certain actions are consistent with the purpose.
Item 4 - Section 4
9. Item 4 inserts a new definition of 'overarching purpose' (of the civil
practice and procedure provisions) into the definitions section of the
Federal Court Act. The 'overarching purpose' is set out in new
subsection 37M(1) at item 6 as 'to facilitate the just resolution of
disputes according to law and as quickly, inexpensively and efficiently
as possible'.
Item 5 - After section 20
10. This new section 20A gives the Court the power to deal with civil
matters without an oral hearing in limited circumstances, when exercising
original jurisdiction. This will allow the Court to deal with matters on
the papers where this will lead to just resolution of a dispute by the
quickest, least expensive and most efficient method. This is consistent
with the overarching purpose in new section 37M, as outlined in item 6.
11. It allows the Court to deal with a matter without an oral hearing if
satisfied that:
. the matter is frivolous or vexatious; or
. the issue or issues on which determination of the matter depends have
been decided authoritatively in the case law; or
. determination of the matter would not be significantly aided by an
oral hearing because:
o there is no real issue of fact relevant to determination of the
matter; and
o the legal arguments in relation to the matter can be dealt with
adequately by written submissions.
12. This amendment does not limit the amendments being made to subsections
20(4) and (6), which are explained in items 5 and 11 of schedule 2 -
Exercise of the jurisdiction of the Federal Court and appeals.
Item 6 - After Part VA
Part VB - Case management in civil proceedings
13. Item 6 inserts a new part in the Federal Court Act dealing with civil
proceedings (this part does not apply to the Court's exercise of criminal
jurisdiction).
Section 37M - The overarching purpose of civil practice and procedure
provisions
14. New section 37M is the centre-piece of the case management reforms. It
provides that the overarching purpose of the civil practice and procedure
provisions is to facilitate the just resolution of disputes according to
law and as quickly, inexpensively and efficiently as possible.
15. This provision will apply to both the Court and parties to the
proceedings, in recognition of the fact that it would not be possible for
either the Court or the parties to achieve this objective without the
assistance of the other. It applies to all civil proceedings before the
Court, both in the Court's original and appellate jurisdictions.
16. New section 37M will provide support to judges so they can confidently
employ active case management powers. The intention is to overcome the
restrictive interpretation by the courts of what is in the interests of
justice following the High Court's decision in State of Queensland v J L
Holdings Pty Ltd (1997) 141 ALR 353 (in which the High Court stated that
case management could not supplant the attainment of justice).
17. Subsection 37M(2) elaborates on the objectives of the overarching
purpose. These are:
. the just determination of all proceedings before the Court;
. the efficient use of the judicial and administrative resources
available for the purposes of the Court;
. the efficient disposal of the Court's overall caseload;
. the disposal of all proceedings in a timely way; and
. the resolution of disputes at a cost that is proportionate to the
importance and complexity of the matters in dispute.
18. Particular concern has been raised about the resources used for 'mega-
litigation'. This provision is intended to be a reminder to litigants
that costs should be proportionate to the matter in dispute. It is not
only the cost to the parties that is relevant. The efficient use of the
Court's resources needs to be taken into account. However, at the same
time, due process will be observed so that justice may be done in the
individual case. These objectives will support the intention that both
the Court's and the litigant's resources are spent efficiently.
19. Subsection 37M(3) notes that the civil practice and procedure
provisions and any power conferred or duty imposed by them must be
exercised in the way that best promotes the overarching purpose.
20. Subsection 37M (4) defines the civil practice and procedure provisions
as the Rules of Court and any provision in the Federal Court Act or other
Acts dealing with civil practice and procedure.
21. The overarching purpose is not intended to prevent the exercise of
judicial discretion in managing particular cases. In the NSW Civil
Procedure Act 2005, section 56 uses the term 'overriding purpose'. An
'overriding purpose' would trump any other inconsistent purpose. For
example, if a party required a certain number of witnesses or a certain
number of hearing days, but this was inconsistent with the just, quick,
and cheap resolution of the real issues in the proceedings, the court
would be required to give effect to the purpose, as it is overriding.
These amendments however provide for an 'overarching' purpose, which is
more in the form of guidance and may be read subject to other specific
instances of inconsistent purpose.
Section 37N - Parties to act consistently with the overarching purpose
22. New section 37N imposes a duty on the parties to act consistently with
the overarching purpose. If the Court makes directions under new section
37P, the Court may make an order or directions if parties do not comply
with those directions. Subsection 37N sets out a non-exhaustive list
which may include orders which limit the proceedings in some way or which
include cost orders against a party.
23. The duty is important to ensure that everyone involved in litigation is
focussing on the real issues in dispute and resolving them as early and
quickly as possible. If the parties conduct settlement negotiations
and/or participate in alternative dispute resolution with this goal in
mind, they may not need to proceed to a hearing.
24. Subsection 37N(2) recognises that parties may need assistance from
their lawyers to act consistently with the new duty. Parties may engage
legal representation to, amongst other things, assist them to comply with
all relevant legislation, including new sections 37M and 37N of the
Federal Court Act. The new subsection requires lawyers to assist their
clients to comply with these duties.
25. If, for example, a party wishes to prolong the litigation as a strategy
to increase the costs of the other party, their lawyer would be obliged
to explain that this behaviour is contrary to the overarching purpose and
may have adverse cost consequences. Also, if a party is refusing to
accept a reasonable offer of settlement, a lawyer will have to explain
that it is in their interest to accept the offer and that failing to do
so may be regarded by the Court as acting inconsistently with the
overarching purpose.
26. Subsection 37N(3) is also intended to assist parties to comply with
their duty by making informed decisions about the progress of their
matter. The Court may order a party's lawyer to give them an estimate of
the likely duration of the proceedings and the likely amount of costs the
party will have to pay in connection with the proceeding. This may have
the effect of assisting the party to prioritise the issues in dispute, or
re-consider the resources they wish to allocate to the litigation.
27. Pursuant to subsection (4), the Court must consider whether to impose
costs for any failure to comply with the duty. The Court currently has
power in the Court Rules to make disciplinary costs orders where costs
have been incurred improperly or without reasonable cause, or are wasted
by undue delay or by any other misconduct or default. (Order 62, Rule 9)
This new provision will give legislative support to these powers and
will make it clear that the court can order costs in a way other than
costs against the unsuccessful party.
28. In connection with the amendments to section 43 of the Federal Court
Act, the Court will have the discretion to award costs against a party to
the proceeding for conduct that breaches the duty, or against a party's
lawyer personally for failing to assist the party to comply with the
duty.
29. In the event that an order is made for a lawyer to bear costs
personally where they have failed to comply, subsection 37N(5) ensures
that the lawyer cannot pass the cost on to their client through contracts
about the payment of their fees or any other way. The purpose of this
amendment is to ensure that lawyers take responsibility for their own
failure to comply with their duty under subsection 37N(2).
30. Examples of the type of conduct that the Court might consider to be a
breach of this duty, and therefore impose costs, include the following
(this is a non-exhaustive list that applies equally to the behaviour of
applicants and respondents):
. unreasonably refusing to participate in conciliation, mediation,
arbitration or other alternative dispute resolution opportunities,
because alternative dispute resolution provides a mechanism for the
parties to resolve their dispute early, quickly and cheaply;
. failing to act in good faith in attempting to resolve or narrow
issues in the proceedings;
. unreasonably rejecting an offer of settlement of part or whole of
the proceeding; or
. pursuing issues in the proceeding that had no reasonable prospect
of success. This might include issues that were vexatious or
frivolous.
31. The intention of this amendment is to bring about a cultural change in
the conduct of litigation so that the Court and the parties are focussed
on resolving disputes as quickly and cheaply as possible. Parties who
act consistently with this duty will be able to avoid cost orders being
made against them and overall, their litigation costs should be reduced.
Section 37P - Power of the Court to give directions about practice and
procedure in civil proceedings
32. New section 37P confirms the kinds of directions the Court may make
regarding practice and procedure in a specific proceeding, which may be
about practice and procedure to be followed in relation to the whole or
part of a proceeding. Such directions can be made at any stage of a
proceeding, including at any time during or after the trial.
33. Some examples of the types of directions that the Court may make are
provided in subsection 37P(3). They include setting time limits and
limiting the length of submissions. These examples are not intended to
limit the powers of the Court to manage proceedings on a case-by-case
basis. They are intended to assist with the practical implementation of
the overarching purpose.
34. Subsection 37P(4) provides that the Court may also consider whether to
make an order under section 53A(1) when giving directions. In
conjunction with the amendments being made to subsection 53A(1) (items 9,
10 and 11 of this schedule), this will allow matters or parts of matters
to be referred to mediation, arbitration or other alternative dispute
resolution processes.
35. The Court will have broad discretion, including the power to waive the
application of any rule of Court. This subsection also clarifies that
directions can be amended or revoked. This is to give the Court
flexibility in managing cases in a way that is appropriate to the
particular matter to be decided.
36. Subsection 37P(5) provides if a party fails to comply with a direction,
the Court may make any order or direction the Court or Judge thinks
appropriate. A 'Court or Judge' is defined in section 4 of the Federal
Court Act as a Judge sitting in Chambers.
37. Subsection 37P(6) provides that the Court or Judge may dismiss the
proceeding in whole or in part, strike out, amend or limit any part of a
party's claim or defence, disallow or reject any evidence; or award costs
against a party. Paragraph 37P(6)(e) makes it clear that such costs may
be awarded on an indemnity basis.
38. Directions under new section 37P are likely to be made at an
interlocutory stage. Section 24 provides that interlocutory orders
cannot be appealed without leave. Therefore, case management decisions
under new section 37P can only be appealed if the Court grants leave for
an appeal.
Item 7 - At the end of section 43
39. Item 7 amends section 43 of the Federal Court Act which deals with the
types of cost orders the Court can make (section 43 does not apply to
criminal law proceedings). The amendments codify various powers in
relation to costs either prescribed by the Rules or at law. It is not
intended to limit the discretion Judges already have under section 43.
40. The intention of the amendments is to make it clear in the legislation
that the Court may make certain orders. These include, directing that
the parties will bear costs in specified proportions, awarding costs
regardless of whether the party is successful in the proceeding and
imposing costs against the party's lawyer personally. Awarding costs
against a lawyer personally is a power currently provided for in the
Rules of Court (Order 62, Rule 9).
41. For clarity, the note provides a cross reference to new cost order
provisions being introduced by the Bill in subsection 37N(4) (costs for
breach of the duty to act consistently with the overarching purpose) and
paragraph 37P(5)(d) (costs for failure to comply with a direction) (see
item 6). This will ensure awareness of all sections under which costs
can be awarded.
Item 8 - Section 49
42. Item 8 amends section 49 of the Federal Court Act which deals with
reserved judgments. The amended provision will allow judgments to be
made public by a judge other than the judge that presided over the
hearing. This provision applies to both civil and criminal proceedings
under the Federal Court Act.
43. The purpose of the amendment is to avoid unnecessary cost, delay and
inconvenience that may arise where a Judge is not able to deliver his or
her judgment at a time and date that is otherwise convenient to the
parties. Section 75 of the Federal Magistrates Act 1999 contains a
similar provision.
Item 9 - Subsection 53A(1)
44. Item 9 amends section 53A of the Federal Court Act which deals with
mediation and arbitration. Under the amended section, the Court may
refer proceedings, or any part of them, to arbitration, mediation or
another alternative dispute resolution process. For this reason, the
amendment inserts a new heading, 'Arbitration, mediation and alternative
dispute resolution processes'.
45. A new definition of 'alternative dispute resolution process' is being
added at item 1. It provides that alternative dispute resolution is a
procedure for resolving disputes not involving the exercise of the
judicial power of the Commonwealth. This might include processes such as
conciliation, neutral evaluation or case appraisal. The definition does
not include arbitration or mediation as these are specifically dealt with
by subsection 53A(1).
Items 10 and 11 - Subsection 53A(1A)
46. The amendments to subsection 53A(1A) clarify that while referrals to
arbitration require the parties consent, referrals to mediation or other
alternative dispute resolution processes can be made with or without
parties consent. There is no change to the existing provision for
arbitration and mediation, the amendment simply clarifies that referral
to an alternative dispute resolution process as defined does not require
the parties to consent.
Item 12 - Application of amendments
47. Item 12 provides that the case management amendments apply to
proceedings commenced before, on or after the commencement of this
Schedule (which will be 28 days after Royal Assent). Any case that is
before the Court when the amendments commence may benefit from the Judge
being able to employ the active case management provisions. The Court
will have discretion to disregard behaviour that is inconsistent with the
overarching purpose if it took place prior to the commencement of the new
provisions.
SCHEDULE 2 - EXERCISE OF THE JURISDICTION OF THE FEDERAL COURT AND APPEALS
Item 1 - Subsection 20(2)
48. Subsection 20(2) provides that appeals from an authority or tribunal
constituted by, or by members who include, a Judge are to be heard by a
Full Court, unless the appeal relates to one of the interlocutory matters
set out in subsections 20(3) and 20(5). In relation to one of these
interlocutory matters, the appeal may be heard by either a single Judge
or a Full Court. No change is being made to how the Court is to exercise
jurisdiction under this subsection in relation to hearing appeals from
decisions of an authority or tribunal that have a Judge on them.
49. This is a minor amendment as a consequence of item 2, to remove the
reference to subsections 20(3) and 20(5) from subsection 20(2). New
subsection 20(2A) as inserted by item 2 ensures that subsection 20(2)
remains subject to subsections 20(3) and 20(5) so that interlocutory
matters from an authority or tribunal that have a Judge on them can be
heard by either a single Judge or a Full Court.
Item 2 - After subsection 20(2)
50. This item inserts new subsection 20(2A) to provide that a decision
about any of the interlocutory matters set out in subsections 20(3) and
20(5) applies in relation to any matter in the Court's original
jurisdiction that is to be determined by a Full Court, not just the
matters coming before the Court pursuant to subsection 20(2).
51. This change enables the Court to decide if one of the interlocutory
matters under subsections 20(3) or 20(5) would be more appropriately
dealt with by a single Judge, rather than convening a Full Court for a
minor procedural matter.
52. This provision addresses an issue that arose in Defence Force
Retirement and Death Benefits Authority v Lokan (QUD 288 of 2007). In
this case, the Chief Justice had determined the matter should be heard by
a Full Court, so only a Full Court could make the consent orders sought
by the parties. Convening a Full Court in such circumstances is an
unnecessary burden on the resources of the Court.
Item 3 - Subsection 20(3)
53. In relation to an appeal from an authority or tribunal under subsection
20(2), subsection 20(3) allows a single Judge or Full Court to hear and
determine an application:
. for leave or special leave to institute proceedings; or
. for an extension of time to institute proceedings; or
. for leave to amend the grounds of an application or appeal; or
. to stay a decision of a tribunal or authority.
54. Item 3 removes the reference to subsection 20(2) so that subsection
20(3) applies to all matters coming before the Full Court in the Court's
original jurisdiction, not just those matters mentioned in subsection
20(2). This item operates in conjunction with item 2.
Item 4 - Subsection 20(3)
55. Item 4 removes any suggestion from subsection 20(3) that a party has a
choice about whether an application for an order is to be heard by either
a single Judge or a Full Court. The power to choose how the Court is
constituted should lie with the Court to ensure that cases are managed
appropriately and efficiently.
56. Confusion about who has the power to choose how the Court is
constituted arose from consideration of a similar provision (subsection
25(2)) in Thomas Borthwick & Sons (Pacific Holdings ) Ltd v Trade
Practices Commission (1988) 18 FCR. This case suggested that it is the
parties who choose whether their matter is heard by a single Judge or a
Full Court.
57. Similar amendments are also being made to subsections 20(5), 25(2),
25(2B), 25(5) and 26(2) by items 10, 18, 23, 25 and 28, respectively.
Item 5 - At the end of subsection 20(4)
58. Item 5 amends part of section 20 of the Federal Court Act. That
section deals with the exercise of the Court's original jurisdiction.
59. In limited circumstances listed in subsection 20(3), the Rules of Court
can currently make provision for matters to be dealt with without an oral
hearing. This amendment will allow for the Rules of Court to provide
that an oral hearing may be dispensed with, with or without the consent
of the parties, in the same circumstances.
60. This will have the effect of allowing the Court greater flexibility in
deciding whether matters require an oral hearing.
Item 6 - Subsection 20(5)
61. In relation to an appeal from an authority or tribunal under subsection
20(2), subsection 20(5) allows a single Judge or Full Court to:
. join or remove a party; or
. make consent orders; or
. dismiss a matter for want of prosecution; or
. dismiss a matter for failure to comply with a direction of the Court
or failure of the applicant to attend a hearing; or
. vary or set aside some orders, or
. give directions about the conduct of a matter.
62. Item 6 inserts a reference to subsection 20(1A) so that subsection
20(5) will apply to any matter in the Court's original jurisdiction that
is to be determined by a Full Court, not just those matters mentioned in
subsection 20(5).
63. This item operates in conjunction with item 2 to provide the Court with
greater flexibility in determining the constitution of the Court when
exercising a power mentioned in subsection 20(5). In response to Defence
Force Retirement and Death Benefits Authority v Lokan (QUD 288 of 2007),
these provisions will ensure that a Full Court need not be convened to
exercise a power mentioned in subsection 20(5), unless it is the Court's
preference to do so.
Item 7 - Subsection 20(5)
64. This provision is intended to reduce unnecessary litigation by enabling
a matter to be heard in chambers where a Judge considers this to be
appropriate.
Item 8 - After paragraph 20(5)(da)
65. Item 8 inserts new subsection (da) into 20(5), enabling a single Judge
sitting in Chambers or in open court or a Full Court to give directions
in its original jurisdiction under subsection 37P(2), which is being
inserted by this Bill.
66. That subsection enables the Court or a Judge to give directions about
the practice and procedure to be followed in relation to the proceeding,
or any part of the proceeding. Subsection 37P(3) gives examples of the
types of directions that may be made under subsection 37P(2), which
include providing for submissions to be made in writing, limiting the
length of submissions (whether written or oral), and setting time limits
for the doing of anything, or the completion of any part of the
proceeding. These examples are not intended to limit the powers of the
Court in any way.
Item 9 - Paragraph 20(5)(e)
67. Subsection 20(5)(e) will be amended to provide that the Court may give
other directions about the conduct of the matter. These other directions
are intended to be directions other than those made under the new
subsection 20(5)(da).
Item 10 - After subsection 20(5)
68. This item inserts new subsection 20(5A) to remove any suggestion that a
party may choose whether an application for an order mentioned in
subsection 20(5) is heard by a single Judge or a Full Court.
69. This confirms the Court's power to manage cases appropriately and
efficiently and removes any confusion about who has the power to choose
how the Court is constituted. As noted in relation to item 4, this
change responds to the suggestion in Thomas Borthwick & Sons (Pacific
Holdings ) Ltd v Trade Practices Commission (1988) 18 FCR that it is the
parties who choose whether their matter is heard by a single Judge or a
Full Court.
70. Similar amendments are also being made to subsections 20(3), 25(2),
25(2B), 25(5) and 26(2) by items 4, 18, 23, 25 and 28, respectively.
Item 11 - At the end of subsection 20(6)
71. Item 11 amends part of section 20 of the Federal Court Act. That
section deals with the exercise of the Court's original jurisdiction.
72. In limited circumstances listed in subsection 20(5), the Rules of Court
can currently make provision for matters to be dealt with without an oral
hearing. This amendment will allow for the Rules of Court to provide
that an oral hearing to be dispensed with, with or without the consent of
the parties, in the same circumstances.
73. This will have the effect of allowing the Court greater flexibility in
deciding whether matters require an oral hearing.
Item 12 - At the end of paragraph 24(1)(a)
74. Paragraph 24(1)(a) currently provides that judgments of a single Judge
exercising either original or appellate jurisdiction are appealable to
the Full Court.
75. This item amends paragraph 24(1)(a) so that no judgment of a single
Judge in the Court's appellate jurisdiction can be appealed to the Full
Court. However, the avenue of appeal to the Full Court from judgments of
a single Judge exercising the original jurisdiction will remain.
76. This ensures that the appeal pathway for single Judge decisions in the
appellate jurisdiction is consistent with the appeal pathway for Full
Court decisions, as there is no avenue for decisions of a Full Court to
be appealed within the Court. This amendment is intended to reduce the
workload of the Court by removing an unnecessary layer of appeal from
decisions of single Judges exercising appellate jurisdiction.
77. To ensure that there will still be an avenue of appeal from final
judgments of a single Judge exercising appellate jurisdiction, item 29
will amend section 33 to provide that these judgments can be appealed to
the High Court with leave. This will further promote a consistent
appeals pathway for all judgments in the appellate jurisdiction, whether
being made by a single Judge or a Full Court.
Item 13 - Subsection 24(1AAA)
78. Item 13 repeals subsection 24(1AAA) and inserts new subsection 24(1AA).
79. Subsection 24(1AAA) currently provides that there is no avenue of
appeal to the Full Court from judgments of a single Judge exercising
appellate jurisdiction in relation to an appeal from the Federal
Magistrates Court. As a result of the amendments being made to paragraph
24(1)(a) by item 12, subsection 24(1AAA) is unnecessary. This is because
no judgment of a single Judge exercising appellate jurisdiction can be
appealed to the Full Court.
80. As a result of item 12, only judgments of a single Judge exercising
original jurisdiction can be appealed to the Full Court. However, new
subsection 24(1AA) provides that there is no appeal to the Full Court
from a number of specified interlocutory decisions of a single Judge
exercising original jurisdiction.
81. These interlocutory matters involve minor procedural decisions for
which there should be no avenue of appeal. The removal of the right to
appeal for these types of matters will ensure the efficient
administration of justice by reducing delays caused by appeals from these
decisions.
82. New subsection 24(1AA) provides that there will be no appeal avenue in
relation to the following minor interlocutory decisions:
. all decisions under subsection 20(3) (i.e. for leave or special leave
to institute proceedings in the Court, for an extension of time within
which to institute proceedings in the Court, for leave to amend the
grounds of an application or appeal to the Court, or to stay a decision
of the tribunal or authority); or
. to join or remove a party; or
. decisions about security for the payment of costs in relation to a
proceeding under s 56; or
. decisions to adjourn a hearing, to vacate a hearing date or expedite a
hearing.
Item 14 - After subsection 24(1A)
83. Item 14 inserts new subsections 24(1B), 24(1C), 24(1D) and (1E).
84. Amended paragraph 24(1)(a), read with subsection 24(1A), provides that
interlocutory decisions of a single Judge exercising original
jurisdiction are appealable with leave.
85. New subsection 24(1B) makes subsection 24(1A) subject to subsection
24(1C) so that leave to appeal is not required for interlocutory
decisions that affect the liberty of an individual or are decisions in
proceedings related to contempt of court.
86. New subsection 24(1D) provides that a judgment by consent and a
decision granting or refusing summary judgment under section 31A are
taken to be interlocutory judgments for the purposes of subsections
24(1A) and 24(1C). This means that an appeal may be brought subject to
leave requirements, if affecting liberty or involving proceedings related
to contempt of court.
87. There are differences in the case law about whether particular
decisions are interlocutory or final for the purposes of determining
appeal rights. These provisions are intended to provide greater
certainty about appeal rights and reduce costs currently incurred in
litigating these matters.
88. Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008]
FCAFC 60 held that an order refusing summary judgment under section 31A
is interlocutory, an order giving summary judgment in relation to some
claims is interlocutory and an order giving summary judgment in relation
to all claims is final. Decisions under section 31A will require leave
to be appealed. The amendments are intended to provide clarity and avoid
the difficult logic of Jefferson.
89. New subsection 24(1E) provides that an interlocutory decision made in
the course of a matter may be listed as one of the grounds for appealing
a final decision.
Item 15 - Subsection 25(1A)
90. Under subsection 25(1A), the current presumption is that appeals from
the Federal Magistrates Court are to be heard by a Full Court unless the
Chief Justice considers that it is appropriate for the appeal to be heard
by a single Judge.
91. Item 15 in conjunction with item 16, reverses the current presumption
to provide that appeals from the Federal Magistrates Court are to be
heard by a single Judge unless a Judge considers that it is appropriate
for the appellate jurisdiction of the Court in relation to the appeal to
be exercised by a Full Court. This arrangement reflects current
practice.
Item 16 - Subsection 25(1AA)
92. Subsection 25(1AA) currently provides that appeals from Federal
Magistrates Court migration decisions are heard by a single Judge unless
the Judge considers the appeal should be heard by a Full Court.
93. This item removes the word "migration" from subsection 25(1AA) so that
all appeals from the Federal Magistrates Court (not just those relating
to migration judgments) are to be heard by a single Judge unless a Judge
considers that it is appropriate for the appellate jurisdiction of the
Court in relation to the appeal to be exercised by a Full Court.
Item 17 - Subsection 25(1B)
94. This amendment is consequential to the repeal of subsection 25(1A)
being made through item 15. Currently subsection 25(1B) provides that
both subsections 25(1A) and 25(1AA) have effect subject to subsections
25(2) and 25(2B). As a consequence of item 15, the reference to
subsection 25(1A) is being removed from subsection 25(1B).
Item 18 - Subsection 25(2)
95. This item removes any suggestion that a party may choose whether an
application for an order mentioned in subsection 25(2) is heard by a
single Judge or a Full Court.
96. This confirms the Court's power to manage cases appropriately and
efficiently and removes any confusion about who has the power to choose
how the Court is constituted. As noted in relation to item 4, this change
responds to the suggestion in Thomas Borthwick & Sons (Pacific Holdings )
Ltd v Trade Practices Commission (1988) 18 FCR that it is the parties who
choose whether their matter is heard by a single Judge or a Full Court.
97. Similar amendments are also being made to subsections 20(3), 20(5),
25(2B), 25(5) and 26(2) by items 4, 10, 23, 25 and 28, respectively.
Item 19 - At the end of subsection 25(2A)
98. Item 19 amends section 25(2A) of the Federal Court Act. This section
deals with the exercise of the Court's appellate jurisdiction.
99. In limited circumstances outlined in subsection 25(2), the Rules of
Court can currently make provision for matters to be dealt with without
an oral hearing. The amendments will allow for the Rules of Court to
provide that an oral hearing to be dispensed with, with or without the
consent of the parties, in the same circumstances.
100. This will have the effect of allowing the Court greater flexibility in
deciding whether matters require an oral hearing.
Item 20 - Subsection 25(2B)
101. As in item 7, this provision is intended to reduce unnecessary
litigation by enabling a matter to be heard in chambers where a Judge
considers this to be appropriate.
Item 21 - After paragraph 25(2B)(bc)
102. Item 21 inserts new subsection (bc) into 25(2B) enabling a single
Judge sitting in Chambers or in open court or a Full Court to give
directions in its appellate jurisdiction under 37P(2), which is being
inserted by this Bill.
103. That subsection enables the Court or a Judge to give directions about
the practice and procedure to be followed in relation to the proceeding,
or any part of the proceeding. Subsection 37P(3) gives examples of the
types of directions that may be made under subsection 37P(2), which
include providing for submissions to be made in writing, limiting the
length of submissions (whether written or oral), and setting time limits
for the doing of anything, or the completion of any part of the
proceeding. These examples are not intended to limit the powers of the
Court in any way.
Item 22 - Paragraph 25(2B)(c)
104. Subsection 25(2B)(c) will be amended to provide that the Court may
give other directions about the conduct of an appeal. These other
directions are intended to be directions other than those made under the
new subsection 25(2B)(c).
Item 23 - After subsection 25(2B)
105. This item inserts new subsections 25(2BA) and 25(2BB).
106. New subsection 25(2BA) provides that the powers a single Judge or a
Full Court may exercise under subsection 25(2B) in relation to appeals
may also be exercised in relation to applications of the kind mentioned
in subsection 25(2). These include applications:
. for leave or special leave to appeal to the Court; or
. for an extension of time within which to institute an appeal to the
Court; or
. for leave to amend the grounds of an appeal to the Court; or
. to stay an order of a Full Court.
107. New subsection 25(2BB) removes any suggestion that a party may choose
whether an application for an order mentioned in subsection 25(2B) is
heard by a single Judge or a Full Court.
108. This confirms the Court's power to manage cases appropriately and
efficiently and removes any confusion about who has the power to choose
how the Court is constituted. As noted in relation to item 4, this
change responds to the suggestion in Thomas Borthwick & Sons (Pacific
Holdings ) Ltd v Trade Practices Commission (1988) 18 FCR that it is the
parties who choose whether their matter is heard by a single Judge or a
Full Court.
109. Similar amendments are also being made to subsections 20(3), 20(5),
25(2), 25(5) and 26(2) by items 4, 10, 18, 25 and 28, respectively.
Item 24 - At the end of subsection 25(2C)
110. Item 24 amends section 25(2A) of the Federal Court Act. This section
deals with the exercise of the Court's appellate jurisdiction.
111. In limited circumstances outlined in subsection 25(2B), the Rules of
Court can currently make provision for matters to be dealt with without
an oral hearing. The amendments will allow for the Rules of Court to
provide that an oral hearing to be dispensed with, with or without the
consent of the parties, in the same circumstances.
112. This will have the effect of allowing the Court greater flexibility in
deciding whether matters require an oral hearing.
Item 25 - Subsection 25(5)
113. This item amends subsection 25(5) to provide that appeals from courts
of summary jurisdiction are to be heard by a single Judge unless a Judge
considers that it is appropriate for the appellate jurisdiction of the
Court in relation to the appeal to be exercised by a Full Court.
114. This item also removes any suggestion that a party may choose whether
an appeal mentioned in subsection 25(5) is heard by a single Judge or a
Full Court.
115. This confirms the Court's power to manage cases appropriately and
efficiently and removes any confusion about who has the power to choose
how the Court is constituted. As noted in relation to item 4, this change
responds to the suggestion in Thomas Borthwick & Sons (Pacific Holdings )
Ltd v Trade Practices Commission (1988) 18 FCR that it is the parties who
choose whether their matter is heard by a single Judge or a Full Court.
116. Similar amendments are also being made to subsections 20(3), 20(5),
25(2), 25(2B) and 26(2) by items 4, 10, 18, 23 and 28, respectively.
Item 26 - Subsection 25(6)
117. Subsection 25(6) currently provides that a single Judge can state any
case or reserve any question concerning a matter to which an appeal would
lie to a Full Court and the Full Court has jurisdiction to hear and
determine the case or question. As a result of the amendments being made
to paragraph 24(1)(a) by item 12, only single Judges exercising original
jurisdiction would be able to state a case or reserve a question for the
Full Court.
118. This item amends subsection 25(6) and rectifies the change to
subsection 25(6) made by item 12, by providing that a single Judge can
refer a difficult question to a Full Court in all circumstances, even
when there is no avenue of appeal to the Full Court. This will assist
the Court in dealing with novel cases and will provide an important
safeguard in relation to the amendments being made by item 12, which
removes the appeal avenue to the Full Court from judgments of single
Judges exercising appellate jurisdiction.
Item 27 - Subsection 25(7)
119. This item repeals subsection 25(7) to remove the definition of
"migration judgment". This amendment is consequential to item 16 which
removes a reference to "migration" from subsection 25(1AA).
Item 28 - Paragraph 26(2)(a)
120. This item removes any suggestion that a party may choose whether the
jurisdiction of the court under subsection 26(1) is exercised by a single
Judge or a Full Court.
121. This confirms the Court's power to manage cases appropriately and
efficiently and removes any confusion about who has the power to choose
how the Court is constituted. As noted in relation to item 4, this change
responds to the suggestion in Thomas Borthwick & Sons (Pacific Holdings )
Ltd v Trade Practices Commission (1988) 18 FCR that it is the parties who
choose whether their matter is heard by a single Judge or a Full Court.
122. Similar amendments are also being made to subsections 20(3), 20(5),
25(2), 25(2B) and 25(5) by items 4, 10, 18, 23 and 25, respectively.
Item 29 - Subsection 33(2)
123. Subsection 33(2) currently provides that no judgment of a single Judge
in either the original or appellate jurisdiction can be appealed to the
High Court, unless it is a judgment of a single Judge exercising
appellate jurisdiction in relation to an appeal from the Federal
Magistrates Court. This item amends subsection 33(2) to ensure that
there is no appeal to the High Court from a judgment of a single Judge in
the original jurisdiction whether interlocutory or final and provides for
an avenue of appeal to the High Court for judgments of single Judges
exercising the appellate jurisdiction.
124. Allowing single Judge decisions in the appellate jurisdiction to be
appealed to the High Court ensures that an avenue of appeal will still be
available following the amendment made by item 12 to remove the right to
appeal from such decisions to the Full Court. This also addresses the
existing inconsistency where single Judge decisions in the appellate
jurisdiction cannot be appealed to the High Court, though Full Court
decisions in the appellate jurisdiction can be appealed.
Item 30 - Subsection 33(2)
125. Subsection 33(2) currently provides that judgments of a single Judge
in the appellate jurisdiction in relation to hearing an appeal from a
judgment of the Federal Magistrates Court are appealable to the High
Court.
126. This item removes all words in subsection 33(2) from and including
"However," to the end, so that there is no reference to judgments of a
single Judge hearing an appeal from a judgment of the Federal Magistrates
Court in that subsection.
127. As the amendments made by items 29, 31 and 32 now provide for an
appeal route to the High Court from judgments of a single Judge in the
appellate jurisdiction, the wording in relation to a single Judge
exercising the appellate jurisdiction to hear an appeal from the Federal
Magistrates Court in subsection 33(2) is no longer necessary.
Item 31 - Subsection 33(4)
128. Subsection 33(4) currently provides that judgments of a single Judge
in the appellate jurisdiction in relation to an appeal from a judgment of
the Federal Magistrates Court are appealable to the High Court with
leave.
129. This item removes all wording from subsection 33(4) that relates to
appeals from a judgment of the Federal Magistrates Court
130. As the amendments made by items 29, 31 and 32 now provide for an
appeal route to the High Court from judgments of a single Judge in the
appellate jurisdiction, the wording in relation to a single Judge
exercising the appellate jurisdiction to hear an appeal from the Federal
Magistrates Court in subsection 33(4) is no longer necessary. Subsection
33(4) will now provide that a final decision of a single Judge in the
Court's appellate jurisdiction can be appealed to the High Court, subject
to a grant of special leave.
131. As mentioned in item 29, allowing single Judge decisions in the
appellate jurisdiction to be appealed to the High Court ensures that an
avenue of appeal will still be available following the amendment made by
item 12 to remove the right to appeal from such decisions to the Full
Court. This also addresses the existing inconsistency where single Judge
decisions in the appellate jurisdiction cannot be appealed to the High
Court, though Full Court decisions in the appellate jurisdiction can be
appealed.
Item 32 - After subsection 33(4)
132. Item 32 amends section 33 to provide that there is no appeal to the
High Court from a number of specified interlocutory decisions of a Full
Court in the Court's original jurisdiction and interlocutory decisions of
a single Judge and a Full Court in the appellate jurisdiction.
133. Generally, interlocutory decisions of a Full Court in the Court's
original jurisdiction are appealable with leave to the High Court.
However, there are a limited number of interlocutory decisions in the
original jurisdiction which involve minor procedural decisions for which
there should be no avenue of appeal. The removal of the right to appeal
will ensure the efficient administration of justice by reducing delays
caused by appeals from these decisions.
134. New subsection 33(4A) provides that the interlocutory decisions from
which there is no appeal from decisions of a Full Court exercising
original jurisdiction are:
. all decisions under subsection 20(3) (ie for leave or special leave to
institute proceedings in the Court, for an extension of time within
which to institute proceedings in the Court, for leave to amend the
grounds of an application or appeal to the Court, or to stay a
decision of the tribunal or authority); and
. a decision to join or remove a party under subsection 20(5); and
. decisions about security for the payment of costs in relation to a
proceeding under section 56; and
. decisions to adjourn a hearing, to vacate a hearing date or expedite a
hearing.
135. Interlocutory decisions of a single Judge or Full Court in the
appellate jurisdiction are generally appealable to the High Court with
leave. Similar to the amendments relating to appeals from interlocutory
decisions of a Full Court in the original jurisdiction, there will be a
limited number of interlocutory decisions in the appellate jurisdiction
from which there will be no right of appeal. These are minor procedural
decisions.
136. New subsection 33(4B) will assist to reduce delays caused by appeals
from these decisions. The interlocutory decisions from which there
should be no appeal are:
. decisions under subsection 25(2) - applications for leave or special
leave to appeal, for extension of time to institute an appeal, for
leave to amend the grounds of an appeal, and applications to stay an
order of a Full Court; and
. decisions under subsection 25(2B) to join or remove a party to an
appeal; and
. decisions under section 29 relating to stays of proceedings and
suspensions of orders; and
. decisions under section 56 about security for the payment of costs in
relation to an appeal; and
. decisions granting or refusing leave to defend a proceeding; and
. decisions to reinstate an appeal that was taken to have been
abandoned or dismissed; and
. decisions for an extension of time to file an application for leave
to appeal; and
. decisions to adjourn, vacate or expedite the hearing of an appeal.
137. New subsection 33(4C) provides that interlocutory decisions made in
the courts of a matter may be listed as one of the grounds in an
application for special leave to appeal the final decision.
138. As mentioned in item 29, allowing single Judge decisions in the
appellate jurisdiction to be appealed to the High Court ensures that an
avenue of appeal will still be available following the amendment made by
item 12 to remove the right to appeal from such decisions to the Full
Court. This also addresses the existing inconsistency where single Judge
decisions in the appellate jurisdiction cannot be appealed to the High
Court, though Full Court decisions in the appellate jurisdiction can be
appealed.
Item 33 - Application of Amendments
139. The amendments being made to Division 1 of the Act (items 1 to 11)
will apply in relation to proceedings commenced on or after the
commencement of Schedule 2 of this Bill.
140. The amendments being made to Division 2 of the Act (items 12 to 27)
will apply in relation to appeals and related applications within the
Federal Court commenced on or after the commencement of Schedule 2 of
this Bill.
141. The amendment being made by item 28 will apply in relation to any case
stated or question reserved under subsection 26(1) on or after the
commencement of Schedule 2 of this Bill.
142. The amendments being made to Part IV (items 29 to 32) relating to
Appeals to the High Court will apply in relation to appeals and related
applications to the High Court commenced on or after the commencement of
Schedule 2 of this Bill.
SCHEDULE 3 - JUDICIAL RESPONSIBILITIES
Part 1 - Main amendments
Family Law Act 1975
Item 1 - Subsection 21B(1)
143. Item 1 amends subsection 21B(1) of the Family Law Act.
144. Subsection 21B(1) currently provides that the Chief Judge is
responsible for ensuring the orderly and expeditious discharge of the
business of the Court.
145. The amendment in Item 1 broadens the responsibility of the Chief Judge
to not only ensure the orderly and expeditious discharge of the business
of the Court, but also the effective discharge of the Court's business.
146. The purpose of this amendment is to make it clear that it is the
responsibility of the Chief Judge to manage issues that impact upon the
effective running of the Court, which might include judicial performance
issues, in order to ensure that the resources of the Court are used and
allocated appropriately and that Judges can manage their workloads and
deliver judgments in a timely manner.
Item 2 - Subsection 21B(1)
147. Item 2 omits wording which deals with the power of the Chief Justice
to make arrangements about the composition of the Court from subsection
21B(1) of the Family Law Act.
148. The purpose and intended effect of the amendments in item 2 are the
same in relation to the Family Court as the amendments proposed by item 9
in relation to the Federal Court. The omitted wording will be included
in the new subsection 21B(1A) of the Family Law Act (see item 3).
Item 3 - After subsection 21B(1)
149. Item 3 inserts a new subsection 21B(1A) into the Family Law Act. The
new subsection elaborates upon the general responsibility of the Chief
Judge to ensure the effective, orderly and expeditious discharge of the
Court's business by providing examples of what actions the Chief Judge
may take to achieve this.
150. These examples are not intended to limit in any way the generality of
the responsibility of the Chief Judge that is contained in subsection
21B(1).
Paragraph 21B(1A)(a)
151. Paragraph 21B(1A)(a) provides three examples of actions that the Chief
Judge may take to discharge the responsibility contained in subsection
21B(1). These examples are not intended to limit in any way the power of
the Chief Justice to ensure the effective, orderly and expeditious
business of the Court.
152. This amendment clarifies that the Chief Judge may assign particular
matters or classes of matters to particular Judges and restrict a Judge
to non-sitting duties (where this is consistent with the discharge of the
general duty to ensure the effective, orderly and expeditious discharge
of the business of the Court).
153. 'Non-sitting' duties could include writing judgments, undertaking
research and study to improve knowledge in areas of law that are relevant
to the work of the Court, preparing material for use in judicial
education, and undertaking research or project work in areas of interest
to the Court and relevant to the exercise of judicial functions.
154. The power to make arrangements about the composition of the Court to
hear particular matters was previously contained in subsection 21B(1)
(see item 2).
Paragraph 21B(1A)(b)
155. Paragraph 21B(1A)(b) places an obligation on the Chief Judge to ensure
that there are arrangements in place to provide Judges with appropriate
access to, or means of receiving reimbursement for, annual health
assessments, short-term counselling services and judicial eduction.
156. The purpose of the amendment is to ensure that Judges have access to
services to assist them to perform their judicial functions.
157. This amendment supports and encourages the retention of systems that
are already in place at the Court and is flexible enough to allow the
Chief Judge to ensure that the type of assistance that best meets a
Judge's needs is available.
Item 4 - Subsections 21B(2) and (3)
158. Item 4 is consequential to amendments made by item 3. It amends
subsections 21B(2) and 21B(3) by replacing references to 'subsection (1)'
with 'this section' to reflect that the powers and responsibilities of
the Chief Judge are set out in subsection 21B(1) and new subsection
21B(1A).
Item 5 - At the end of section 21B
159. Item 5 inserts new subsections 21B(4) and 21B(5) into the Family Law
Act.
160. New subsection 21B(4) makes it clear that in exercising any of the
specific functions or powers set out in new section 21B(1A)(a), the Chief
Judge, or the Deputy Chief Judge or Judge Administrator assisting the
Chief Judge, will have the same protection and immunity as he or she has
in judicial proceedings in the Court.
161. The inclusion of subsection 21B(4) is not intended to create any
inference about whether the exercise of other functions or powers under
this or other Acts attracts judicial immunity.
162. New subsection 21B(5) amends the application of section 39B of the
Judiciary Act 1903 in relation to specified powers in subsection 21B(1A)
of the Family Law Act.
163. Section 39B of the Judiciary Act provides that the original
jurisdiction of the Federal Court includes jurisdiction with respect to
any matter in which a writ of mandamus, prohibition or an injunction is
sought against an officer of the Commonwealth. New subsection 21B(5)
provides that the Federal Court does not have jurisdiction with respect
to the exercise of the functions or powers mentioned in subsection
21B(1A).
Item 6 - After subsection 22(2)
164. Item 6 inserts new subsections 22(2AAA), 22(2AAB) and 22(2AAC) into
the Family Law Act.
165. New subsection 22(2AAA) will provide that a commission of appointment
must assign a Judge to a particular location. A Judge would accept an
appointment knowing its location and then could not be forced to move.
He or she would require the consent of the Chief Judge and the Attorney-
General in order to move from this location.
166. The purpose of this amendment is to ensure that, over time, judicial
resources in a particular location continue to be sufficient and not
excessive for the workloads of that location and, more specifically, to
prevent Judges moving permanently from one location to another except
with the consent of the Chief Judge and the Attorney-General.
167. This amendment will only apply to Judges whose appointments are made
after the commencement of this item.
168. New subsection 22(2AAB) makes it clear that the Chief Judge, in
deciding whether to consent to a Judge sitting in another location on a
permanent basis as set out in new paragraph 22(2AAA)(a), will have the
same protection and immunity as he or she has in judicial proceedings in
the Court.
169. New subsection 22(2AAC) provides that, despite section 39B of the
Judiciary Act, the Federal Court does not have jurisdiction in respect of
the exercise by the Chief Judge and the Attorney-General of their power
to consent to a Judge sitting in another location (as mentioned in new
paragraph 22(2AAA)(a)).
170. Section 39B of the Judiciary Act provides that the original
jurisdiction of the Federal Court includes jurisdiction with respect to
any matter in which a writ of mandamus, prohibition or an injunction is
sought against an officer of the Commonwealth.
Federal Court of Australia Act 1976
Item 7 - After subsection 6(2)
171. Item 7 inserts new subsections 6(3), 6(3A) and 6(3B) into the Federal
Court of Australia Act.
172. The purpose and intended effect of the amendments in item 7 are the
same in relation to the Chief Justice of the Federal Court as the
amendments proposed by item 6 in relation to the Chief Judge of the
Family Court. These amendments provide (a) clarification of the role of
the head of court in determining the location where Judges sit (b) that
the head of court is protected by judicial immunity when exercising the
power to consent and (c) that, despite section 39B of the Judiciary Act,
the Federal Court has no jurisdiction in respect of the exercise by the
Chief Judge and the Attorney-General of their power to consent to a Judge
sitting in another location (as set out in new paragraph 6(3)(a)).
Item 8 - Subsection 15(1)
173. Item 8 amends subsection 15(1) of the Federal Court of Australia Act.
Subsection 15(1) currently provides that the Chief Justice is responsible
for ensuring the orderly and expeditious discharge of the business of the
Court.
174. The purpose and intended effect of the amendments in item 8 are the
same in relation to the Chief Justice of the Federal Court as the
amendments proposed by item 1 in relation to the Chief Judge of the
Family Court and item 11 in relation to the Chief Federal Magistrate.
These amendments broaden the responsibility of the head of court to not
only ensure the orderly and expeditious discharge of the business of the
Court, but also the effective discharge of the Court's business.
Item 9 - Subsection 15(1)
175. Item 9 omits wording which deals with the power of the Chief Justice
to make arrangements about the composition of the Court from subsection
15(1) of the Federal Court of Australia Act.
176. The purpose and intended effect of the amendments in item 9 are the
same in relation to the Federal Court as the amendments proposed by item
2 in relation to the Family Court. The omitted wording will be included
in the new subsection 15(1A) (see item 10).
Item 10 - After subsection 15(1)
177. Item 10 inserts new subsections 15(1A), 15(1B) and 15(1C) into the
Federal Court of Australia Act.
178. The purpose and intended effect of the amendments in item 10 are the
same in relation to the Chief Justice of the Federal Court as the
amendments proposed by items 3 and 5 in relation to the Family Court and
items 12 and 13 in relation to the Federal Magistrates Court. These
amendments (a) elaborate upon the general responsibility of the head of
court to ensure the effective, orderly and expeditious discharge of the
Court's business (b) make it clear that in exercising certain specific
functions or powers the head of court will be protected by judicial
immunity, and (c) provide that, despite section 39B of the Judiciary Act,
the Federal Court has no jurisdiction in respect of the exercise of the
functions or powers in subsection 15(1A).
Federal Magistrates Act 1999
Item 11 - Subsection 12(1)
179. Item 11 amends subsection 12(1) of the Federal Magistrates Act.
180. The purpose and intended effect of the amendments in item 11 are the
same in relation to the Chief Federal Magistrate as the amendments
proposed by item 1 in relation to the Chief Judge of the Family Court and
item 8 in relation to the Chief Justice of the Federal Court. These
amendments broaden the responsibility of the head of court to not only
ensure the orderly and expeditious discharge of the business of the
Court, but also the effective discharge of the Court's business.
Item 12 - Subsection 12(3)
181. Item 12 repeals subsection 12(3) of the Federal Magistrates Act and
substitutes a new subsection 12(3) about the effective, orderly and
expeditious discharge of the Court's business.
182. The purpose and intended effect of the amendments in item 12 in
relation to the Chief Federal Magistrate are the same as the amendments
proposed by item 3 in relation to the Family Court. These amendments
elaborate upon the general responsibility of the head of court to ensure
the effective, orderly and expeditious discharge of the Court's business
by providing examples of what actions the Chief Federal Magistrate may
take to achieve this.
183. These examples are not intended to limit in any way the generality of
the responsibility of the Chief Federal Magistrate that is contained in
subsection 12(1).
Item 13 - After subsection 12(6)
184. Item 13 inserts new subsections 12(6A) and 12(6B) into the Federal
Magistrates Act.
185. The purpose and intended effect of the amendments in item 13 are the
same in relation to the Chief Federal Magistrate as the amendments
proposed by item 5 in relation to the Family Court. These amendments
make it clear that in exercising certain specific functions or powers the
head of court will be protected by judicial immunity and provide that,
despite section 39B of the Judiciary Act, the Federal Court has no
jurisdiction in respect of the exercise of the functions or powers in
subsections 12(3) or (4).
Item 14 - Application of amendments
186. Item 14 confirms that the amendments to the Family Law Act and the
Federal Court Act in items 6 and 7 which provide that commissions of
appointment must assign judges to a particular location do not apply to
judges appointed before the commencement of the amendments.
187. The amendments made by this Schedule, other than items 6 and 7, apply
to Judges and Federal Magistrates whether they are appointed before or
after the commencement of the amendments.
Part 2 - Related Amendments
Administrative Decisions (Judicial Review) Act 1977
Item 15 - At the end of Schedule 1
188. Item 15 inserts three new paragraphs into Schedule 1 of the
Administrative Decisions (Judicial Review) Act 1977 to exclude certain
decisions of the head of court from judicial review under that Act.
189. Schedule 1 of the Administrative Decision (Judicial Review) Act sets
out classes of decisions that are excluded from judicial review under
that Act. The amendments in item 15 will exclude decisions of the head
of court about the constitution of the court in particular matters, about
assigning caseloads or functions to particular Judges or Federal
Magistrates and about restricting Judges or Federal Magistrates to non-
sitting duties, in addition to decisions about the location at which a
Judge or Federal Magistrate may sit in a permanent capacity (these
decisions will be set out in new paragraphs (zd), (ze) and (zf) of
Schedule 1 of the Administrative Decision (Judicial Review) Act).
190. Any decisions under these provisions still carry the protection
inherent in the wording of the relevant enabling section that decisions
must be made subject to appropriate consultation. Review by the High
Court under section 75(v) of the Constitution will also remain.
191. The express inclusion of these classes of decision in Schedule 1 of
the Administrative Decisions (Judicial Review) Act is not intended to
create any inference about whether other decisions made under the Family
Law Act, the Federal Court of Australia Act or the Federal Magistrates
Act will be reviewable under the Administrative Decisions (Judicial
Review) Act.