Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ACCESS TO JUSTICE (CIVIL LITIGATION REFORMS)
AMENDMENT BILL 2009
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
ACCESS TO JUSTICE (CIVIL LITIGATION
REFORMS) AMENDMENT BILL 2009
GENERAL OUTLINE
The 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.
The Government amendments implement a recommendation from the recent report
by the Senate Standing Committee on Legal and Constitutional Affairs on the
Bill. The Senate Report recommended that proposed paragraph 24(1AA)(c) be
deleted from Schedule 2 of the Bill so that interlocutory decisions
relating to security for the payment of costs by a Single Federal Court
Judge can continue to be appealed to the Full Federal Court.
In addition the Government amendments will delete proposed paragraphs
33(4A)(c) and 33(4B)(d) from Schedule 2 of the Bill, consistent with the
recommendation to delete proposed paragraph 24(1AA) (c), to ensure that an
avenue of appeal to the High Court continues to exist for an interlocutory
decision relating to security for costs, when made by the Full Court
exercising original jurisdiction and a single Judge or Full Court in the
appellate jurisdiction, respectively.
The Government amendments clarify that a Judge of the Federal Court of
Australia, other than the Chief Justice, may hold a concurrent appointment
as a Judge of one or more State Supreme Courts.
FINANCIAL IMPACT
There is no direct financial impact on Government revenue arising from
these amendments.
NOTES ON AMENDMENTS
Amendment 1
1. This amendment provides that Schedule 4 of the Bill commences 28 days
after Royal Assent. This is in accordance with Schedules 1 and 2 of the
Bill.
Amendment 2
2. In response to concern expressed in submissions to the inquiry of the
Senate Standing Committee on Legal and Constitutional Affairs, this
amendment omits proposed paragraph 24(1AA)(c). Proposed subsection
24(1AA) provides that there is no avenue of appeal to the Full Court from
a number of specified interlocutory decisions of a single Judge
exercising original jurisdiction. Paragraph 24(1AA)(c) includes
decisions about security for the payment of costs as a relevant
interlocutory decision.
3. The Government acknowledges submissions made to the Committee that if
decisions about security for the payment of costs were not subject to
appeal, it could expose litigants to significant financial risk,
regardless of the merits of their case.
4. This amendment does not otherwise affect the operation of proposed
subsection 24(1AA).
Amendment 3
5. This amendment omits proposed paragraph 33(4A)(c). Proposed subsection
33(4A) provides that there is no avenue of appeal to the High Court from
a number of specified interlocutory decisions of a Full Court exercising
original jurisdiction. Paragraph 33(4A)(c) includes decisions about
security for the payment of costs as a relevant interlocutory decision.
6. The Government acknowledges submissions made to the Committee that if
decisions about security for the payment of costs were not subject to
appeal, it could expose litigants to significant financial risk,
regardless of the merits of their case.
7. This amendment does not otherwise affect the operation of proposed
subsection 33(4A).
Amendment 4
8. This amendment omits proposed paragraph 33(4B)(d). Proposed subsection
33(4B) provides that there is no avenue of appeal to the High Court from
a number of specified interlocutory decisions in the appellate
jurisdiction of the Federal Court. Paragraph 33(4B)(d) includes
decisions about security for the payment of costs as a relevant
interlocutory decision.
9. The Government acknowledges submissions made to the Committee that if
decisions about security for the payment of costs were not subject to
appeal, it could expose litigants to significant financial risk,
regardless of the merits of their case.
10. This amendment does not otherwise affect the operation of proposed
subsection 33(4B).
Amendment 5
11. This amendment adds a further schedule to the Bill - Schedule 4 -
Appointment of Federal Court Judges to State Supreme Courts. The
amendment inserts 'the Supreme Court of a State' within the definition of
prescribed court contained in subsection 6(7) of the Federal Court of
Australia Act 1976.
12. The amendment clarifies that a Judge of the Federal Court of Australia,
other than the Chief Justice, may hold a concurrent appointment as a
Judge of one or more State Supreme Courts.
13. In March 2008, the Standing Committee of Attorneys-General first agreed
to the development of an exchange program between judicial officers of
interested jurisdictions.
14. The Federal Court Act does not currently preclude appointments of
Federal Court Judges to State courts. The amendment will encourage
existing arrangements for the temporary transfer of Federal Court Judges
to State Supreme Courts.
15. The transfer of Federal Court Judges to hear matters in superior State
Courts will enhance the knowledge and experience of Federal Court Judges,
benefit other jurisdictions with new ideas and improvements to their
courts and result in a more consistent body of national decision-making
in areas of common jurisdiction.
16. The amendment does not provide the Commonwealth with unilateral power
to appoint Federal Court Judges, temporarily or permanently, as Judges of
State Supreme Courts.
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