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French, Robert --- "What Do Federal Court Judges Do?" [2000] ALRCRefJl 22; (2000) 77 Australian Law Reform Commission Reform Journal 12


Reform Issue 77 Spring 2000

This article appeared on pages 12 - 15 & 94 of the original journal.

What do Federal Court judges do?

Australia has a complex system of federal and state courts. Many people are familiar with the traditional role of a judge or magistrate hearing cases in the state courts, particularly criminal cases with or without juries. But many have some difficulty in working out precisely what it is that judges in the Federal Court do. Some get it mixed up with the High Court and think all Federal Court judges work in Canberra. Justice Robert French* explains the kinds of cases that the Federal Court of Australia has to decide and the nature of the work that its judges have to do.

When the Commonwealth of Australia came into existence in 1901 there were no federal courts. Each of the states of the newly formed Federation retained its pre-federation system of Supreme Courts and Magistrates Courts. The only new court directly created by the Constitution was the High Court, which was to become the final court of appeal for Australia after the abolition of appeals to the Privy Council in the 1980s.

Although the Constitution provided for the creation of federal courts by the new Commonwealth parliament, it also authorised that parliament to give the state courts jurisdiction to decide cases arising under federal laws. The parliament did this by its enactment of the Judiciary Act 1903 (Cth). For the greater part of Australia’s first 100 years, state courts and the High Court were responsible for the interpretation and application of federal laws. There were some specialist federal courts created but the range of laws they dealt with was quite narrow. The first was the Commonwealth Court of Conciliation and Arbitration in 1904, which was concerned with disputes arising under federal industrial relations laws. That Court was replaced by another specialist federal court called the Commonwealth Industrial Court. That happened after the High Court held in 1956 in the famous Boilermakers’ case1 that the Commonwealth Court of Conciliation and Arbitration was invalidly exercising a mixture of judicial and non-judicial functions. The Boilermakers’ case was famous because it enunciated and applied the doctrine of separation of powers. So the power of a court was to make judicial decisions. It could not act as an administrative decision maker. Its powers were different in kind. It could not act like a minister or official who might be responsible to a minister. In this way the independence of the courts from the executive was to be maintained. The Commonwealth Industrial Court was renamed the Australian Industrial Court in 1973. There was also a Federal Court of Bankruptcy created in 1930. Again, it was a specialist court.

A new federal justice system

The 1970s saw a major reshaping of the Australian federal judicial system with the creation of the Family Court of Australia in 1975 and the Federal Court of Australia in 1976. The Family Court is a federal court that, as almost everybody knows, deals with a range of matters concerned with the breakdown of marriages. It grants divorces and makes decisions about things such as the maintenance and custody of children and the division of property after a divorce.

The Federal Court of Australia was created by the Federal Court of Australia Act 1976 (Cth). There were two reasons stated for setting up the Court. The first was to take on some of the workload of the High Court in matters arising under federal or territory laws. As well as being effectively the final court of appeal for all of Australia on important constitutional matters and other matters of general principle, the High Court also had jurisdiction under the Constitution to deal as a first instance court with certain matters. The second reason for setting up a Federal Court was to deal with special areas of law that it was felt should be dealt with by one national court rather than a variety of state courts. These included industrial law, bankruptcy, trade practices and legal challenges to the decisions of federal ministers or officials or other federal bodies.

When it was first set up the Federal Court was given 20 judges. It now has 50. Many of those judges are resident in Melbourne and Sydney. There are judges also resident in each of the other state capitals except Hobart, which is serviced from Melbourne. Of the 50 judges, five are women. There is also a resident judge in Canberra. Darwin is served by judges resident in Adelaide. Most of the judges were senior barristers before they were appointed to the Court. Some had been judges of state Supreme Courts. A few were appointed from among the ranks of solicitors and some from an academic background.

The work of the Court

The work of the Court at the beginning of its life involved a narrow band of laws. Today, however, it has to deal with a large number of such laws and a very wide range of cases although it does not deal with criminal cases. The Court can decide matters arising under state law if they form part of a federal matter. This is called the accrued jurisdiction of the Court.

The principal areas of the Court’s jurisdiction arise under Commonwealth laws about trade practices, taxation, bankruptcy, intellectual property (patents, copyright, designs and trademarks), industrial law, admiralty, native title and more recently human rights. Trade practices law deals largely with two kinds of cases. The first kind involve claims of misleading or deceptive conduct by companies in trade or commerce. The second concern unfair competition between companies. Cases under trade practices law may be about the sale of businesses and whether representations of past financial performance were true or not. They may concern quite major commercial disputes involving millions of dollars arising out of corporate takeovers or other large corporate transactions. Large commercial disputes arising under the Trade Practices Act 1974 (Cth) may go on for weeks and involve many millions of dollars. In competition law, the cases may have to do with companies that have a lot of power in the market place misusing their power to try to eliminate or damage their competitors. They may also have to do with price fixing or agreements between competitors, which limit competition and thus restrict the benefits that competition may deliver to the consumer. These cases are interesting and challenging for the judges because they involve not only questions of law and fact, but also questions about the economics of the market place. Here there is an intersection between economics and law. The judges may be called on to make decisions based in part upon the evidence of economists as well as industry experts and others.

In the area of intellectual property and particularly patents, the judges hearing such cases may have to acquire an understanding of complex technical matters involved in new inventions. Many of these may be on the cutting edge of new technology particularly in the growing field of biotechnology and genetic engineering. Judges may have to determine whether what is claimed as an invention is in fact new or just an obvious development from existing technology. It requires them to understand not just the invention that is in dispute but also the state of the art in that line of technology at the time it was sought to patent the invention. Again, this involves expert evidence and consideration of large numbers of documents.

Administrative law

Administrative law is an important area of the law dealt with by Federal Court judges. It concerns challenges to the decisions of government ministers and officials and administrative bodies set up by federal laws. Generally speaking, the judges are required to decide in these cases whether the decision under challenge was made in accordance with the law and whether fair procedures were followed. The range of government decisions potentially subject to challenge is immense. They may include decisions about commercial and technical matters such as the application of customs duties, the grant of bounties or the imposition of excise taxes. A judge may be asked to consider the way in which a major mining operation and its associated works operates and to decide whether diesel fuel used in part of that process is used ‘in mining operations’ for the purposes of the diesel fuel rebate. Usually the facts are not in dispute in such cases, it is rather a question of understanding the process and then making an evaluation about whether or not the particular part of the process uses fuel in a way that is ‘in mining operations’. Sometimes, because of the ways our laws are drawn, the Court has to decide questions people might think rather strange. In one case the Court had to decide whether Sub-Zero Alcoholic Soda was ‘a spirituous beverage’ for the purposes of excise laws. The judge heard a lot of interesting information about how Sub-Zero Alcoholic Soda is made from a by-product of the manufacture of Fosters Light Beer. The judge decided that it was not a spirituous beverage. The question was no doubt worth a significant amount of money in terms of excise duties.

A large part of the administrative law work of the Court is concerned with the sensitive and difficult area of immigration law and, in particular, people who claim they are entitled to be treated as refugees and allowed to remain in Australia under the terms of the United Nations Refugees Convention. In these cases the Court is frequently asked to review the decisions of an administrative body, the Refugee Review Tribunal, which can decide whether or not a person claiming to be a refugee should be treated as such and get a protection visa allowing that person to remain in Australia. Many of the people who apply to the Court to review decisions of the Refugee Review Tribunal are not represented by lawyers and are in detention in places like the Port Hedland Detention Centre. They have to speak to the Court through interpreters, by telephone or video link and very often have little idea of the limited nature of the Court’s powers. The Court is often assisted in such cases by lawyers who volunteer their services free of charge. Given the very limited availability of legal aid for the purposes of migration cases in the Federal Court, the work of the Court would be much more difficult without the aid of these volunteer lawyers.

Native title cases

One of the most challenging new areas of jurisdiction for the Court is that of native title. In such cases an Indigenous group seeks a determination from the Court recognising that, according to its traditional laws and customs, it exercises native title rights and interests over a certain area of land and/or water. It seeks recognition of that native title for, once recognised, that title can be protected under Commonwealth law.

The cases involve judges hearing evidence from Aboriginal people in their own country and in settings that are very different from those of the traditional courtroom. Tents and trees are often the infrastructure that defines the ‘courtroom’ in such cases. Sometimes, for cultural reasons, evidence is given by people as part of a group: a process which is very different from the traditional presentation of evidence by a witness in a witness box.

The judge in native title cases has to come to grips with often complex rules of traditional law and custom as well as the history of association between the claimant group and the land in question. Sometimes there are disputes between different claimant groups about who has rightful authority over the land in question. Expert evidence is provided by anthropologists, historians, linguists and others. Sometimes particularly sensitive evidence may be restricted, under traditional law and custom, to the members of a particular gender. Thus some evidence may only be taken in the presence of women (the judge, if male, being the one exception – perhaps treated as an honorary woman). Native title cases also involve evidence about dealings with land since colonisation by governments. The extent to which traditional land has been subject to state or Commonwealth laws, or interests granted under such laws, will affect the extent to which native title can be recognised.

These cases require patience, cultural sensitivity and the mastery of difficult questions of traditional law and custom, as well as land use history, and associated property laws. However, it is part of an enterprise of historic importance for Australia involving, as it does, the adjustment and – for the first time – recognition of rights for Indigenous people which derive from their own law and custom. This is an area in which political and community passions can run quite high.

Appeal Work

The judges of the Federal Court when hearing cases do so sitting in court without a jury. When somebody wants to appeal against a judge’s decision the appeal is heard by three other judges of the Court who make up what is called a Full Court. So all the judges of the Court sit as trial judges and also as appeal judges. Parties who want to challenge the decision of a Full Court must apply to the High Court for special leave to appeal against that decision. The High Court has to be satisfied that there is some point of general importance or principle involved before it will grant special leave.

Conclusion

Over and above these tasks, which lie at the heart of the business of judging, a Federal Court judge today must also be a manager of the cases under his or her control. The progress of cases to court is no longer left just to the parties and their lawyers. The judges take an active supervisory role in ensuring that the cases move to trial in a timely fashion. So each judge has a list or ‘docket’ of cases, generally randomly allocated, in which directions will be given for steps leading to the trial itself. This is a departure from the long standing tradition of years past in which judges simply sat back and waited for the parties to get ready for trial, present their case at trial (however long it took) and then decided the case.

The task of Federal Court judges, in common with those of judges of the state courts, is increasingly a demanding one. But its variety and the many ways in which it interacts with social, political, economic, industrial and commercial issues, ensure that it will never be boring.

* The Hon Justice Robert French is a judge of the Federal Court of Australia, based in Perth.

Endnotes

1. R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 (HC).


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