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1998-1999-2000
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE HOUSE OF REPRESENTATIVES
JURISDICTION OF COURTS (MISCELLANEOUS
AMENDMENTS) BILL 2000
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Attorney-General,
the Honourable Daryl Williams AM QC
MP)
ISBN: 0642 453470
JURISDICTION OF COURTS (MISCELLANEOUS AMENDMENTS) BILL 2000
GENERAL OUTLINE
Clauses 1, 2, and 3 contain the short title of the Act, its commencement provisions and a reference to its Schedules respectively.
Schedule 1 makes amendments concerning the jurisdiction of the Federal Magistrates Court and the Federal Court.
Part 1 of the Schedule amends the Administrative Decisions (Judicial Review) Act 1977, the Family Law Act 1975 and the Trade Practices Act 1974. These amendments clarify certain aspects of the jurisdiction of the Federal Magistrates Court and the Federal Court.
Part 2 of the Schedule contains safety-net provisions, designed to ensure that, should certain jurisdiction of the Federal Magistrates Court be found not to be validly conferred, then judgments made by the Federal Magistrates Court relying on that jurisdiction will have the same effect as valid judgments made by the Court.
Part 3 of the Schedule contains transitional provisions.
FINANCIAL IMPACT STATEMENT
The Bill will not have any significant financial impact.
NOTES ON CLAUSES
Clause 1
This clause contains the short title of the Act.
Clause 2
This clause provides that the Act commences upon Royal Assent.
Clause 3
This clause provides that amendments to other Acts made by this Act and this Act’s other provisions are specified in the Schedules to the Act.
Schedule 1 - Jurisdiction of Courts
Part 1: Amendments
This Part amends some provisions of Acts which confer jurisdiction on the Federal Magistrates Court and the Federal Court.
Item 1
This item inserts subsections 10, 11 and 12 into section 3 of the Administrative Decisions (Judicial Review) Act 1977.
Subsection 8(1) of the Administrative Decisions (Judicial Review) Act 1977 provides that the Federal Court has jurisdiction to hear and determine applications made to that court under that Act. Subsection 3(10) clarifies that both applications originally filed with the Federal Court and applications transferred to the Federal Court from the Federal Magistrates Court are applications made to the Court.
This subsection is inserted to avoid any doubt that the Federal Court has jurisdiction to deal with applications under the Administrative Decisions (Judicial Review) Act 1977 that are transferred to it from the Federal Magistrates Court, as well as applications under that Act which are originally filed with the Federal Court. It also provides, for the avoidance of doubt, that the Federal Court is taken always to have had this jurisdiction.
Subsection 8(2) of the Administrative Decisions (Judicial Review) Act 1977 provides that the Federal Magistrates Court has jurisdiction to hear and determine applications made to that court under that Act. Subsection 3(11) clarifies that both applications originally filed with the Federal Magistrates Court and applications transferred to the Federal Magistrates Court from the Federal Court are applications made to the Court.
This subsection is inserted to avoid any doubt that the Federal Magistrates Court has jurisdiction to deal with applications under the Administrative Decisions (Judicial Review) Act 1977 that are transferred to it from the Federal Court, as well as applications under that Act which are originally filed with the Federal Magistrates Court. It also provides, for the avoidance of doubt, that the Federal Magistrates Court is taken always to have had this jurisdiction.
Paragraph 3(11)(b) clarifies that this jurisdiction of the Federal Magistrates Court only includes applications which could have been made directly to the Federal Magistrates Court. For example, it does not include applications under the Administrative Decisions (Judicial Review) Act 1977 relating to decisions made under the Australian Citizenship Act 1948, the Immigration (Education) Act 1971, the Immigration (Guardianship of Children) Act 1946, the Migration Act 1958 or regulations made under one of those Acts (see subsections 5(4), 6(4), 7(3) and 13(10A) of the Administrative Decisions (Judicial Review) Act 1977).
Subsection 3(12) provides that section 19 of the Federal Magistrates Act 1999 should be disregarded when considering whether applications could have been made directly to the Federal Magistrates Court under paragraph 3(11)(b), as outlined above. Section 19 of the Federal Magistrates Act 1999 prohibits proceedings being instituted in the Federal Magistrates Court if associated proceedings are pending in the Family Court or the Federal Court. This subsection makes clear that section 19 of the Federal Magistrates Act 1999 is not relevant when considering whether an application under the Administrative Decisions (Judicial Review) Act 1977 could have been made directly to the Federal Magistrates Court.
Item 2
This amendment inserts a note after section 8 of the Administrative Decisions (Judicial Review) Act 1977. Section 8 confers jurisdiction under that Act upon the Federal Court and the Federal Magistrates Court. The note reminds the reader also to consult subsections 3(10), (11) and (12) of that Act to assist in clarifying the jurisdiction of each court under the Act.
Item 3
This item adds subsection 39(5AA) to the Family Law Act 1975, to clarify for the avoidance of doubt that the Federal Magistrates Court has, and is taken always to have had, jurisdiction in respect to matters arising under that Act in respect of which the kinds of matrimonial causes specified in the subsection are instituted under that Act.
This amendment clarifies that the Federal Magistrates Court has jurisdiction with respect to the specified kinds of matrimonial causes that are transferred to it from the Family Court, as well as those kinds of matrimonial causes that are originally filed with the Federal Magistrates Court.
Item 4
This item amends section 86AA of the Trade Practices Act 1974. Section 86AA limits the amount of damages which the Federal Magistrates Court can award in proceedings under that Act to $200,000 or such other amount as is prescribed. The amendment clarifies that this limitation applies to proceedings transferred to the Federal Magistrates Court from the Federal Court, as well as proceedings which are originally filed with the Federal Magistrates Court.
Item 5
This item amends the note under section 86AA of the Trade Practices Act 1974, to indicate that transfers from the Federal Court to the Federal Magistrates Court are dealt with under section 32AB of the Federal Court of Australia Act 1976.
Part 2 - Safety-net provisions
This Part contains provisions to prescribe the consequences of designated judgments of the Federal Magistrates Court. Whilst it is more likely than not that the Federal Magistrates Court already has jurisdiction in relation to the kinds of proceedings the subject of the provisions, these amendments are made to provide certainty in the event that it is later held that the Federal Magistrates Court did not have jurisdiction in the kinds of proceedings in question. The amendments do not attempt to validate the judgments in question made by the Federal Magistrates Court, but create new statutory rights and liabilities that may be exercised and enforced in the same manner as valid judgments of the Federal Magistrates Court.
Item 6
This item contains definitions of terms used in Part 2 of the Schedule.
Item 7
This item defines a designated judgment for the purposes of Part 2 of the Schedule.
Sub-item 7(1) provides that if, before the item commences, a proceeding under the Administrative Decisions (Judicial Review) Act 1977 had been transferred from the Federal Court to the Federal Magistrates Court, and the Federal Magistrates Court did not have jurisdiction to hear and determine the proceeding but had purported to give judgment, and the Federal Magistrates Court would have had jurisdiction if subsections 3(11) and (12) of the Administrative Decisions (Judicial Review) Act 1977 had been in force, then the judgment is a “designated judgment”. Subsections 3(11) and (12) are to be inserted by item 1 of the Schedule.
Sub-item 7(2) provides that if, before the item commences, a proceeding under the Family Law Act 1975 had been transferred from the Family Court to the Federal Magistrates Court, and the Federal Magistrates Court did not have jurisdiction to hear and determine the proceeding but had purported to give judgment, and the Federal Magistrates Court would have had jurisdiction if subsection 39(5AA) of the Family Law Act 1975 had been in force, then the judgment is a “designated judgment”. Subsection 39(5AA) is to be inserted by item 3 of the Schedule.
Sub-item 7(3) provides that a court has purported to vary etc a designated judgment, a reference to the designated judgment in Part 2 of the Schedule is to be interpreted as a reference to the content of the judgment in the form it took from time to time. This ensures that any variations etc to a designated judgment are accounted for when determining the extent of a person’s rights and liabilities under item 8.
Item 8
This item provides that the rights and liabilities under a designated judgment are the same as if the designated judgment had been a valid judgment of the Federal Magistrates Court. The purpose of this item is not for Parliament to validate such judgments, but to provide for the same consequences to flow from such judgments as if they had been valid judgments of the Federal Magistrates Court.
Item 9
This item describes the effect of the declaration of the rights and liabilities made under item 8. Sub-item 9(1) provides that the statutory rights and liabilities created by item 8 may be exercised and enforced in the same way as similar rights and liabilities arising under a valid judgment of the Federal Magistrates Court. Sub-item 9(2) makes clear that these rights include the right to appeal.
Sub-item 9(3) ensures that the a court can also deal with a failure to comply with a liability in the same way that it could deal with a failure to comply with an order of the Federal Magistrates Court under Division 2 of Part XIIIA of the Family Law Act 1975.
Item 10
This item ensures that the rights and liabilities specified in item 8 have effect for the purposes of other laws in the same way as orders of the Federal Magistrates Court. This could be relevant, for example, when ascertaining a person’s taxation liabilities or other liabilities (eg for bankruptcy purposes), or when a person remarries after an order nisi granted by the Federal Magistrates Court has become absolute in respect of a previous marriage.
Item 11
This item gives the Federal Magistrates Court, the Federal Court (for proceedings under the Administrative Decisions (Judicial Review) Act 1977) and the Family Court (for proceedings under the Family Law Act 1975) jurisdiction to deal with the statutory rights and liabilities created by item 8 in the same way that they could deal with similar rights and liabilities created by a valid judgment of the Federal Magistrates Court. It also ensures that any court can give judgment to achieve any other result that could have been achieved if a designated judgment of the Federal Magistrates Court had been a valid judgment of the Federal Magistrates Court.
Item 12
This item provides that, where a person has interfered with a right conferred or affected by item 8 or failed to satisfy or comply with a liability conferred or affected by item 8, the interference or failure can be dealt with in the same manner as if it had occurred in relation to a right or liability arising under a valid judgment of the Federal Magistrates Court. This, for example, would give the Federal Magistrates Court the ability to deal with such failures or interferences as contempt of court.
Item 13
Since designated judgments are not valid judgments, it is necessary to have a special evidence provision rather than rely on the application of the Evidence Act 1995. This item therefore allows the court record of a designated judgment to be used as evidence in court proceedings to show the existence and details of a person’s rights and liabilities created under item 8.
Item 14
This item ensures that item 8 does not apply to any judgment of the Federal Magistrates Court which may have been declared invalid, quashed or overruled by the Federal Court or the Family Court for reasons other than lack of jurisdiction.
Item 15
This item allows the Governor-General to make regulations prescribing matters necessary or convenient for carrying out or giving effect to this Part.
Part 3 - Transitional
Items 16 and 17
These items provide that the enactment of the Schedule does not imply that the Federal Court or the Federal Magistrates Court were not already intended by Parliament to have jurisdiction in relation to proceedings of the kind dealt with in the Schedule. The Schedule is being inserted merely to put these matters beyond doubt.