Bills Digest No. 59 1999-2000 Federal Magistrates Bill 1999

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Federal Magistrates Bill 1999

Date Introduced: 24 June 1999

House: House of Representatives

Portfolio: Attorney-General

Commencement: Royal Assent. However, proceedings cannot be commenced in or transferred to the Federal Magistrates Court until either a date fixed by Proclamation or 6 months from the date of Royal Assent (whichever is earlier).

Purpose

To establish a Federal Magistrates Court.

Background

This Digest should be read in conjunction with Bills Digest No. 55 1999-2000 which deals with the Federal Magistrates (Consequential Amendments) Bill 1999 (the Consequentials Bill). That Digest describes and comments on the jurisdiction conferred on the Federal Magistrates Court. It also canvasses some of the submissions made to the Senate Legal and Constitutional Legislation Committee which is inquiring into both Bills.

Federal courts

For the first seventy-five years after federation, few federal courts were established.(1) The Family Law Act 1975 (Cwlth) established a specialist family court with jurisdiction in relation to matters such as divorce, residence and contact in children's matters, property alteration, and maintenance. The Federal Court of Australia Act 1976 (Cwlth) created a Federal Court on which jurisdiction is conferred by a number of other Commonwealth statutes including the Bankruptcy Act 1966 (Cwlth) and the Trade Practices Act 1974 (Cwlth). Both these courts are superior courts.(2) At various times since federation, a federal industrial relations court has been in existence. Its most recent incarnation-the Industrial Relations Court of Australia-was established in 1994. While technically this Court continues to exist, its jurisdiction was transferred to the Federal Court of Australia in 1997.(3)

The Federal Magistrates Bill 1999 (the Bill) establishes a lower level federal court-to be called the Federal Magistrates Court or the Federal Magistrates Service.

Family law

The idea of federal magistrates-most particularly in the area of family law-has been under discussion for some time. The discussion has centred on how to make justice more accessible and less costly for family law litigants and reduce delays in the Family Court. Different views exist about the reasons for delay and how they can best be remedied. However, these matters are not canvassed here.(4)

Before looking at some proposals for federal magistrates, it is worth briefly looking at the Family Law Act 1975 and the mechanisms that currently exist for the resolution of disputes.(5)

In 1974, the Senate Standing Committee on Constitutional and Legal Affairs reported on the Family Law Bill 1974. As read a first time in the Senate, this Bill provided for the establishment of a Superior Court of Australia with a Family Law Division rather than a specialist family court. However, the Senate Committee recommended the creation of a specialist court with two tiers of judges. The first tier would consist of judges with status equivalent to that of a Supreme Court or Federal Judge. The second tier would have a status equivalent to that of a County Court or District Court judge. It was assumed that first tier judges would deal with complex 'custody and property issues' and with matters of 'legal substance and difficulty'.(6)

The recommendation to establish a specialist Family Court was adopted by the government of the day and incorporated into the Family Law Act, as was the idea to create two tiers of judges. Among the judicial officers provided for in the Family Law Act are Senior Judges and other Judges.(7) There are no Senior Judges in the Family Court at present.(8) However, a number of legislative changes have been made with the aim of streamlining proceedings in the Family Court.(9) For example, under section 37A, Registrars can be appointed to exercise certain powers of the Family Court. Under the Rules of Court these powers include powers to make maintenance orders, residence and contact orders in undefended proceedings, and orders for the dissolution of a marriage in undefended proceedings.(10) Additionally, section 26A of the Family Law Act establishes the office of Judicial Registrar. Section 26B enables the Family Court to make rules delegating power to Judicial Registrars. The Family Law Rules confer a number of powers on Judicial Registrars. These include powers to make property alteration orders and to make orders in undefended proceedings.(11) The Family Law Act also provides for court counsellors.(12) Counselling, mediation, arbitration and other means of conciliation or reconciliation are regarded as the primary dispute resolution mechanisms of family law.(13)

As a result of subsection 39(6) and section 69J of the Family Law Act, jurisdiction in family law matters may also be exercised by State and Territory courts of summary jurisdiction.(14) With exceptions, these courts can deal with all family law applications. For example, they cannot deal with proceedings for a decree of nullity or make certain declarations relating to a marriage. Further, a court of summary jurisdiction cannot determine contested proceedings for a parenting order without the consent of the parties.(15) And, in property matters a court of summary jurisdiction is generally limited to cases where the value of the property does not exceed $20,000.(16)

The High Court's decision in Brandy

In 1992, the Sex Discrimination and Other Legislation Amendment Act was passed. It amended the Disability Discrimination Act 1992, the Human Rights and Equal Opportunity Act 1986, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 and made HREOC determinations registered in the Federal Court enforceable as court orders.(17)

In October 1994, in Brandy v. Human Rights and Equal Opportunity Commission(18) the High Court struck down these provisions in relation to determinations made by HREOC under the Racial Discrimination Act. The High Court said these provisions were invalid because they purported to confer judicial power on an administrative body (HREOC). As a consequence, HREOC determinations under the Racial Discrimination Act are unenforceable, as are determinations made under the Sex Discrimination Act and the Disability Discrimination Act.

Details of the response to the Brandy decision by the previous and present Governments are set out in Bills Digest No.115 1998-99. The present Government's legislative response is contained in the Human Rights Legislation Amendment Bill (No.1) 1999.(19) In part, that Bill removes the HREOC's inquiry and determination functions and implements a scheme by which complaints not resolved through conciliation may be continued in the Federal Court in order to obtain an enforceable decision.

The Federal Magistrates Bill 1999 and the Consequentials Bill can be seen, in part, as an attempt to divert to Federal Magistrates Court some of the human rights caseload which, as a result of the decision in Brandy, must be determined by the Federal Court.

Proposals for federal magistrates

Some of the proposals which have been raised in the context of federal magistrates or a federal magistracy are briefly outlined below.

In July 1995, the Family Law Council(20) published a report entitled Magistrates in Family Law: An evaluation of the exercise of summary jurisdiction to improve access to family law. The Council's report opens with the following words:

After considering a number of possible models for reform, the Council recommended that:

In 1992, a Parliamentary Joint Select Committee began an inquiry into the administration and funding of the Family Court. Amongst the submissions it received was one from the Family Court proposing the appointment of specialist Family Court magistrates with exclusive jurisdiction in metropolitan and regional centres. The Family Court proposed:

In April 1995, the Commonwealth Attorney-General's Department made a submission to the Joint Select Committee about the Family Court's proposal. Among other things, the Departmental submission questioned whether a structure consisting of judges and magistrates would work when the senior judge/judge structure had not.(24)

In November 1995, the Joint Select Committee produced its report Funding and Administration of the Family Court of Australia. The Joint Select Committee recommended that specialist State Magistrates be trained in and appointed to hear family law matters particularly in outer suburban, provincial and rural areas. It also said that these Magistrates should have direct access to the Family Court of Australia for advice and research assistance and to the Court Counselling service. For the future, the Committee said consideration should be given to making the Family Court of Australia a division of the Federal Court and to establishing a Federal Magistracy.(25)

On 29 November 1995, the Attorney-General, Michael Lavarch asked the Australian Law Reform Commission (ALRC) to review the adversarial system of litigation. The inquiry:

On 2 September 1997, the present Attorney-General, the Hon. Daryl Williams QC, MP, altered the Commission's terms of reference. One of the topics excluded from consideration under the altered terms of reference was 'the possible establishment, structure and jurisdiction of a federal magistracy'-because the Attorney-General's Department was examining the issue.(27) However, the ALRC's Issues Paper 22 touches briefly on some of the options and objectives for a federal magistracy.(28)

In February 1998, the Government responded to the Joint Select Committee's report and said it was considering options for the establishment of a federal magistracy. With matters like the High Court decision in Brandy probably in mind the Government said:

In January 1997, the Attorney-General's Department produced a paper called Options for a Federal Magistracy. Reportedly, it considered a number of options and stated that, '... the proposal for a federal magistracy ties in with the Government's ongoing commitment to the improvement of all aspects of the family law system'.(30)

In February of the same year, the Family Law Council responded to the options paper and re-stated its view that federal family law magistrates were needed. In particular, it reportedly supported specialist training for family law magistrates rather than the use of multi-skilled magistrates and re-iterated that family law magistrates should be part of the Family Court. Magistrates would thereby have access to the Family Court's facilities, workload and priorities would be determined by the Family Court, and the magistrates would share the Family Court's vision and objectives.(31)

In October 1998, the Attorney-General addressed the Third National Conference of the Family Court of Australia and outlined his plans for a federal magistracy. He expressed particular concerns about delays and costs in Family Court proceedings and about delays in the Federal Court. He added:

On 8 December 1998, the Attorney-General announced that Cabinet had given in-principle approval to the creation of a federal magistracy to undertake less complex civil and family law matters. The Attorney rejected calls for the appointment of more judges to the Family Court as 'both an expensive and structurally inefficient means of addressing the problem of delay'.(33) He said:

In March 1999, the National Alternative Dispute Resolution Advisory Council (NADRC) completed a report entitled The Use of Alternative Dispute Resolution in a Federal Magistracy. Its report canvassed the types of alternative dispute resolution processes that should be used in the Federal Magistracy, who should provide those processes, and when parties should be referred to ADR. Among the proposals made by NADRC were that references to ADR should be spelled out in the statutory objectives of the Federal Magistrates Bill(34) and that the legislation should define particular types of dispute resolution process using the definitions contained in a 1997 NADRC paper.(35)

In May 1999, the Shadow Attorney-General said that 'While Labor will not oppose the establishment of the Magistracy, we believe that it can be established in a more efficient and effective manner, interconnected with the existing court structures'.(36) In particular, the Opposition expressed concern about the adequacy of resourcing for the Federal Magistrates Court and changes to resourcing of the Family Court.(37) The Shadow Attorney suggested that a better approach might be to give:

In July 1999, the Chief Justice of the Family Court said that the Court did not disagree with the need for a summary family law jurisdiction but was concerned by the proposal to establish a separate administrative structure. He said:

The Federal Magistrates Bill 1999 and the Federal Magistrates (Consequential Amendments) Bill 1999 were introduced into the House of Representatives on 24 June 1999. Both Bills have been referred to the Senate Legal and Constitutional Legislation Committee. The Committee has a reporting date of 30 September 1999.

Models for reform

One of the major debates which has occurred in relation to the creation of a federal magistracy is whether there should be a general federal magistracy or specialist magistrates and whether a federal magistracy should be part of existing federal courts or have its own separate court structure. It has also been suggested that State and Territory magistrates should be granted additional jurisdiction to hear federal matters.

Possible models for reform have included:

• a roving Federal Magistrates Service that would outsource Federal Magistrates to federal courts as they were needed
• the establishment of a separate Federal Magistrates Court
• the appointment of Federal magistrates directly to the Family and Federal Courts, and
• vesting additional jurisdiction in the State and Territory courts of summary jurisdiction.(40)

On 17 June 1999, the High Court handed down its decision in Re Wakim; Ex parte McNally.(41) In Re Wakim, the Court held that federal courts could not exercise cross-vested State jurisdiction. Under cross-vesting schemes, federal courts and State and Territory courts could exercise each other's jurisdiction thus enabling all aspects of a dispute to be heard in the one court.(42) The case may have implications for the federal magistrates court.

The Constitution

Chapter III of the Commonwealth Constitution deals with courts exercising federal judicial power. It enables the Parliament to establish federal courts.(43) It identifies the courts that can exercise federal judicial power(44), provides for the appointment, remuneration and dismissal of justices of the High Court and other federal courts,(45) and deals with jurisdictional matters. The structure and text of the Constitution-in which the Parliament, the Executive and the Judicature are dealt with in separate Chapters-gives rise to the doctrine of the separation of powers. The doctrine requires the separation of federal judicial and non-judicial powers in order to preserve the independence of the judiciary and the rule of law.

A number of issues arise when a new Chapter III court is created. These include whether constitutional requirements in relation to judicial independence and accountability, the separation of powers and judicial process have been satisfied. These requirements and others are described briefly below.

Constitutional power to create a federal magistracy

In 1990, the then Commonwealth Solicitor-General made the following statement about the creation of a family court magistracy:

However, in advice referred to by the Family Law Council in its 1995 report on Magistrates in Family Law, the Solicitor-General said there was no reason why Parliament could not legislate for a class of Chapter III judges to be known by a title other than 'judge' or 'justice'.(47) This view is presumably based on the idea that it is the functions and incidents of office and not the label given to a judicial officer which is determinative.

Judicial independence and judicial accountability

Chapter III of the Constitution mandates the conditions under which federal justices can be appointed and removed. Section 72 of the Constitution provides for the appointment, dismissal and remuneration of justices of the High Court and other courts created by the Parliament. Importantly, these justices can only be removed from office 'on an address from both Houses of Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity'. Additionally, justices' remuneration cannot be diminished during 'their continuance in office' and their retirement age is set at 70 years unless an earlier age is determined by Parliament. These Constitutional provisions are designed to safeguard the independence of the judiciary. They also provide for judicial accountability.

The separation of powers

The constitutional doctrine of the separation of federal judicial power is also relevant to the establishment of a Chapter III court and the appointment of its justices. The separation of powers doctrine has two strands. The 'primary separation rule' says that only Chapter III courts can exercise federal judicial power.(48) The rule in the Boilermakers Case says that a Chapter III court can only exercise judicial power or power that is ancillary or incidental to the exercise of that power.(49)

The incompatibility principle

The rule in Boilermakers has undergone some elaboration since the decision was handed down in 1957. For example, the High Court has developed what is called the 'incompatibility principle'. As early as 1985, the Court said that a federal judge could be invested with non-judicial power as persona designata(50) subject to:

The idea of constitutional incompatibility as an exception to the persona designata principle was more fully explored in Grollo v. Palmer(52) and Wilson v. Minister for Aboriginal and Torres Strait Islander Affairs.(53) In Grollo v. Palmer, the majority elaborated on when the incompatibility exception to the persona designata rule might apply:

Most recently, the High Court's decision in Kable v. Director of Public Prosecutions (NSW)(55) suggests that the incompatibility doctrine is a freestanding principle:

The incompatibility doctrine might thus be relevant when Parliament creates a new federal court and new judicial officers.

Judicial process

While there is no leading case on the subject, some High Court judges have turned their minds to the question of whether judicial power has two aspects-the first concerning its nature or purpose and the second concerning how it is exercised.(57) In Chu Kheng Lim v. Minister for Immigration, Local Government and Ethnic Affairs, Brennan, Deane and Dawson JJ said:

Discussion of the nature of judicial process has generally been in the context of the requirements of natural justice.(59) However, there may be scope for arguing that an incident of judicial process is the giving of sufficient reasons for decision.

Main Provisions

Objects

The objects of the legislation are set out in clause 3. They include enabling the Federal Magistrates Court to operate informally and use streamlined procedures, and encouraging the use of a range of dispute resolution processes.

Creation of a Federal Magistrates Court

Clause 8 creates a Federal Magistrates Court consisting of a Chief Federal Magistrate and other federal magistrates. It is a court of law and equity and a court of record. Butterworths Encyclopaedic Australian Legal Dictionary defines a court of record as follows:

Jurisdiction

Clause 10 provides that the Federal Magistrates Court has such jurisdiction as is expressly vested in it by Commonwealth law. Initially, this jurisdiction is to be conferred by the Federal Magistrates (Consequential Amendment) Bill 1999. The Court's jurisdiction also includes hearing appeals from authorities and tribunals. Additional civil jurisdiction is vested in the court via section 15C of the Acts Interpretation Act 1901 (Cwlth). Section 15C says that where a statute expressly or impliedly enables proceedings to be commenced in a particular court, then that court has jurisdiction in the matter.

Clause 12 deals with the powers and functions of the Chief Federal Magistrate. These include assigning federal magistrates to particular cases and to particular locations and registries. Subclause 11(7) provides that additional powers and functions can be conferred on the Chief Federal Magistrate by way of regulation.

Clause 13 provides that except in family law or child support matters or where a federal magistrate is sitting in Chambers, the Federal Magistrates Court must conduct its proceedings in open court. Section 97 of the Family Law Act deals with when family law and child support matters are heard in open court or in Chambers. A federal magistrate may order the court to be closed if an open court would be contrary to the interests of justice or prejudicial to Commonwealth security [subclause 13(7)]. Clause 13 also specifies when a Federal Magistrate may sit in Chambers and when a Federal Magistrate must sit in Chambers.

Clause 14 provides that in determining a matter the Federal Magistrates Court must grant '... all remedies to which any of the parties appears to be entitled ...' so that the matter is completely and finally determined.

Clauses 15 and 16 enable the Federal Magistrates Court to make orders, issue writs and make declarations of right.

Clause 17 empowers the Federal Magistrates Court to punish contempts of court.

Subclause 19(1) provides that proceedings cannot be commenced in the Federal Magistrates Court if 'an associated matter' is before the Federal Court or Family Court. The expression 'associated matter' is not defined.

Exceptions to the general prohibition found in subclause 19(1) are contained in subclause 19(2)-these are proceedings instituted in the Federal Magistrates Court under Division 13A of Part VII of the Family Law Act 1975 and proceedings under Part XIIIA of that Act. Division 13A of Part VII will be inserted into the Family Law Act by the Family Law Reform Bill which the Government intends to introduce during the Spring Sittings. Division 13A will deal with the enforcement of orders relating to children. Part XIIIA of the Family Law Act provides sanctions for failure to comply with orders under the Family Law Act.

Clause 20 provides that an appeal cannot be taken directly from the Federal Magistrates Court to the High Court of Australia. Appeals lie to either the Federal Court or the Family Court and then, if special leave is granted, to the High Court.

Primary dispute resolution

General

The expression 'primary dispute resolution' is defined in clause 21 to include counselling, mediation, arbitration, neutral evaluation, case appraisal and conciliation.

Clause 22 requires the Federal Magistrates Court consider advising parties before it about primary dispute resolution.

Clause 23 provides that if the Court considers a primary dispute resolution process might help parties resolve their dispute then it must advise them to use that process.

Clause 24 imposes a duty on lawyers to consider advising their clients about primary dispute resolution processes.

Officers of the Federal Magistrates Court must as far as practicable advise people about primary dispute resolution processes if asked to do so (clause 25).

Clause 26 enables the Federal Magistrates Court to order parties to attend conciliation.

Rules of Court and regulations may be made about primary dispute resolution processes (clauses 28, 29 & 31). Rules of Court may include provision for the costs of primary dispute resolution and their assessment (clause 30).

Clause 32 empowers the Federal Magistrates Court to make consent orders.

Primary dispute resolution in proceedings other than family law or child support matters

New Division 2 of Part 4 of the legislation concerns primary dispute resolution in matters other than family law or child support proceedings. Amendments to the Family Law Act contained in the Consequentials Bill enable the Federal Magistrates Court to refer parties in family law matters to mediation and enable parties to ask to be referred to a counsellor or mediator.

Clause 34 provides that the Federal Magistrates Court can refer proceedings wholly or partly to a mediator. Such referrals can be made without the consent of the parties [subclause 34(3)]. Nothing said in such mediation is admissible in any court or proceedings [subclause 34(4)]. Subclause 34(5) gives mediators the same protections and immunities as a Federal Magistrate.

Clause 35 enables the Federal Magistrates Court to refer proceedings wholly or partly to an arbitrator-but only with the consent of the parties. The Rules of Court can provide for the registration of an arbitrator's award. Like mediators, arbitrators who deal with matters referred by the Federal Magistrates Court have the same protections and immunities as Federal Magistrates.

The Federal Magistrates Court can make an enforceable order in the terms of an arbitrator's award (clause 38).

Transfer of proceedings to the Federal Court or the Family Court

On the application of a party or on its own initiative, the Federal Magistrates Court can transfer pending proceedings to the Family Court or the Federal Court [subclauses 39(1) & (2)]. In exercising its discretion under clause 39 the Federal Magistrates Court must consider the relevant Rules of Court, whether proceedings in an associated matter are pending in the relevant superior court, whether its own resources to deal with the case are sufficient and the administration of justice [subclauses 39(3) & (4)]. A decision about the transfer of proceedings under subclause 39(1) is not appealable [subclause 39(6)]. Subclause 39(8) provides that these provisions do not apply to proceedings specified in regulations.

Rules of Court may be made setting out the matters to be taken into account by the Federal Magistrates Court when it exercises its discretion about the transfer of proceedings (clause 40). Before Rules about the transfer of proceedings are made, the Federal Magistrates Court must consult with the relevant superior federal court [subclauses 40(6) & (7)].

Clause 41 deals with the mandatory transfer of proceedings from the Federal Magistrates Court to the Federal Court or the Family Court. Regulations may specify what proceedings are the subject of mandatory transfer (clause 41). Transfer regulations must be tabled in the Parliament and are disallowable instruments. However, the disallowance procedure under subclause 41(8) differs from that found in the Acts Interpretation Act 1901 (see Concluding Comments). The Explanatory Memorandum points out that the disallowance provisions in the Bill are based on the Remuneration Tribunal Act 1973.(60)

Practice and procedure

General

Clause 42 provides that proceedings in the Federal Magistrates Court must be conducted 'without undue formality'. The Court must also try to ensure that proceedings are not protracted.

In general, the practice and procedure of the Federal Magistrates Court will be in accordance with Rules of Court made under the Act (clause 43).

Under clause 44 legal representation can only be provided in the Federal Magistrates Court by a person who is entitled to practise in a federal court, is regarded as an 'authorised representative' under the regulations or is authorised as a representative by another Commonwealth law.

Clause 45 provides that interrogatories and discovery are not permitted in relation to proceedings in the Federal Magistrates Court unless the Court or a Federal Magistrate declares it appropriate in the interests of justice.

Clause 46 allows the Federal Magistrates Court to issue subpoenas to give evidence or produce documents, or both.

Documents filed with the Federal Magistrates Court

Clauses 47 to 51 deal with matters such as the filing of documents, seals and stamps of the court. Clause 52 provides that subject to Rules of Court directions can be given limiting the length of documents filed in the court.

Conduct of proceedings

Clause 53 enables the Federal Magistrates Court to sit anywhere in Australia.

Clause 54 provides that civil proceedings in the Federal Magistrates Court must be conducted without a jury.

The Federal Magistrates Court's Rules of Court can provide that the Court can make decisions without an oral hearing if the parties consent (clause 55).

Clauses 56 and 57 empower the court to give directions limiting the time for oral argument and the length of written submissions.

Clause 58 provides that formal defects or irregularities in proceedings do not invalidate tbose proceedings unless the Court believes that a substantial injustice has resulted that cannot be cured by a Court order.

Evidence

Clause 62 enables the Federal Magistrates Court to prohibit or restrict the publication of evidence, the name of a party or witness or access to documents obtained through discovery or subpoena if it appears necessary for the administration of justice or Commonwealth security. Note, that in relation to family law and child support proceedings, section 121 of the Family Law Act applies.

Clause 63 enables the Federal Magistrates Court to give directions about the length of testimony.

Clause 64 enables the Federal Magistrates Court to question witnesses if such questioning is likely to assist in resolving a matter in dispute or to assist in the expeditious conduct of the proceedings.

Clause 66 contains penalties for witnesses who fail to respond to a subpoena or summons, refuse to be sworn or refuse to answer questions. The maximum penalty is imprisonment for 6 months or an equivalent monetary penalty based on the formula contained in section 4B of the Crimes Act 1914 (Cwlth).

Use of video links or audio links

Clause 67 enables testimony to be given by video or audio link. The expressions 'video link' and 'audio link' are defined in clause 5. Appearances and submissions may also be made by video link or audio link (clauses 67 and 68).

However, the use of video link or audio link is not permitted unless certain conditions are satisfied (clause 70). For example, when video link is used eligible persons in the court must be able to see and hear the remote person. 'Eligible persons' are persons who the court considers to be eligible persons for the purposes of a particular proceeding [subclause 70(5)].

Clause 71 relates to how documents are put to a person when video link or audio link is used. Clause 72 deals with the administration of oaths and affirmations when video or audio link is used.

The Court can order expenses to be paid for costs incurred in giving testimony, appearing or making submissions by video link or audio link (clause 73).

Orders and judgments

The Federal Magistrates Court may give reasons for its decisions either orally or in writing [subclause 76(1)]. Subclause 76(4) enables the Court to give written reasons in short form according to the Rules of Court. The expression 'short form' is not defined. Subclause 76(5) provides that section 25D of the Acts Interpretation Act 1901 (Cwlth) does not apply to the giving of reasons by the Federal Magistrates Court. Section 25D of the Acts Interpretation Act says that where a statute requires a tribunal, body or person to give written reasons the statement of reasons must also set out findings of fact and the evidence on which the findings were based.

Clauses 78 and 79 deal with interest orders and the payment of interest on judgment debts. Neither clause applies to family court or child support proceedings. These are dealt with by the Family Law Act.

Costs

Clauses 81 and 82 deal with costs. Neither applies to family law or child support proceedings-which are dealt with under the Family Law Act. Except as provided by Rules of Court or another statute, costs in the Federal Magistrates Court are awarded at the discretion of the Court [subclause 81(3)]. The Court can also order that an applicant in proceedings before it give security for costs [subclause 82(2)].

Rules of Court

Clause 83 enables Federal Magistrates or a majority of them to make Rules of Court. Rules of Court can provide for practice, procedure and other matters. The disallowable instruments provisions of the Acts Interpretation Act 1901 apply to Rules of Court. In brief, these mean that the Rules must be tabled in both Houses of Parliament and are subject to disallowance by either House within the statutory timeframes set out in the Acts Interpretation Act. Other matters which can be included in Rules of Court are set out in clauses 84 to 90. These matters include pleadings, service, evidence, orders and judgments, costs, trial management and incidental matters.

Management of the Federal Magistrates Court

Administration

Subject to other provisions in the legislation, the Federal Magistrates Court administers its own affairs [subsections 91(1) & (2)]. It can enter into contracts and acquire and dispose of real and personal property [subclause 91(3)]. However, the approval of the Minister is required in the case of a contract involving more than $1 million or more (if a higher amount is prescribed).

Clause 92 enables the Chief Federal Magistrate to arrange for other Australian courts to carry out certain functions on behalf of the Federal Magistrates Court. These functions include receiving documents, issuing writs, administering oaths and affidavits and other non-judicial functions. The expression 'Australian court' is defined in clause 5 as a federal, State or Territory court.

Clause 93 enables the Chief Federal Magistrate to arrange for Commonwealth, State or Territory agencies or other organisations to receive documents on behalf of the Federal Magistrates Court or perform other non-judicial functions of the Court.

Clause 94 enables the Chief Federal Magistrate make arrangements to use the courtrooms of other Australian courts and share registry and other facilities with those courts.

Chief Executive Officer

Clause 96 establishes the office of Chief Executive Officer (CEO) of the Federal Magistrates Court. The CEO assists in the administration of the Court [clause 98].

Registries

Clause 100 enables the Minister to establish Registries of the Federal Magistrates Court.

Other officers and staff

Clause 101 provides for the appointment of Registrars, a Sheriff, Deputy Sheriffs, a Marshall and Deputy Marshalls. It is possible for a person to be both an officer of the Federal Magistrates Court and an officer of the Federal Court or the Family Court [subclauses 101(2) & (4)].

Certain powers of Federal Magistrates can be exercised by Registrars (clause 104). These include power to make orders about service, interrogatories, adjournment of proceedings and costs. In family law or child support matters a Registrar can direct a party to answer questions, attend counselling conferences, make urgent orders (for example, in relation to spousal maintenance), make consent orders and make orders for the enforcement of maintenance orders [subclause 104(2)].

Under the Rules of Court, powers of the Federal Magistrates Courts can be delegated to Registrars (clause 105). The powers that can be delegated include but are not limited to the matters listed in subclause 104(2). When a power delegated to a Registrar under the Rules of Court is exercised, then it is taken to have been exercised by the Federal Magistrates Court or a Federal Magistrate [subclause 105(3)]. Certain prohibitions and restrictions exist on the exercise of delegated power in family law matters [subclauses 105(5) & (6)].

A party can ask the Federal Magistrates Court to review the exercise of a delegated power by a Registrar [subclause 106(2)]. Subclause 106(3) allows the Federal Magistrates Court to review an exercise of a Registrar's power on its own initiative. A Registrar may refer a matter to the Federal Magistrates Court [subclause 106(4)]-if, for example, the Registrar thinks it is not appropriate for his or her determination.

Clause 108 appoints a Sheriff who is responsible for service and execution of process.

Clause 111 provides for a Marshal who is responsible for security and for detaining and releasing persons from custody when required to do so by the Federal Magistrates Court.

There are also provisions allowing for the appointment of Deputy Sheriffs, Deputy Marshalls and their assistants (clauses 109, 110, 112 & 113).

Clause 118 provides that procedural information can be made available to parties-especially to unrepresented parties-to assist them in presenting their cases.

Clause 119 requires the Chief Federal Magistrate to provide an annual report to the responsible Minister. The report must be tabled in Parliament as soon as practicable.

Schedule 1-Personnel provisions relating to Federal Magistrates

Clause 1 of Schedule 1 deals with the appointment of Federal Magistrates. A Federal Magistrate is appointed by the Governor-General [subclause 1(1)] and must be a legal practitioner of at least five years standing [clause 1(2)]. A Federal Magistrate's term expires when he or she turns 70 [subclause 1(4)]. Federal Magistrates may be appointed on a full-time or part-time basis except for the Chief Federal Magistrate who is a full-time appointee [subclause 1(5) & (6)].

Subclause 4(1) prohibits a Federal Magistrate from undertaking paid outside work incompatible with the holding of federal judicial office. The expression 'paid work' is defined by subclause 4(4) to mean work for financial gain or reward. Subclause 4(2) prohibits a Federal Magistrate from working as a legal practitioner or as an employee in or consultant to a legal practice. Clause 4 does not impliedly limit the application of the doctrine of constitutional incompatibility [subclause 4(3)].

Clause 5 provides that the Remuneration Tribunal is to determine the remuneration for Federal Magistrates. The Remuneration Tribunal also determines the remuneration of federal judges.

Terms and conditions for Federal Magistrates are determined by the Governor-General [subclause 8(1)]. Determinations must be tabled in Parliament and are disallowable instruments [subclause 8(2), (3) & (4)]. The disallowance regime differs from that contained in the Acts Interpretation Act 1901 and is based on that found in the Remuneration Tribunal Act 1973 (see Concluding Comments).

A Federal Magistrate can only be removed from office by the Governor-General following an address from both Houses of Parliament in the same session on the ground of proven misbehaviour or incapacity (clause 9). The wording of clause 9 follows the wording of section 72(ii) of the Constitution which relates to the removal of federal justices.

Clause 11 provides that a Federal Magistrate's remuneration cannot be diminished while he or she is in office. The words 'remuneration' and 'diminished' are defined by subclause 11(2) to have the same meaning as they do in paragraph 72(iii) of the Constitution.

Schedule 2-Personnel provisions relating to the Chief Executive Officer of the Federal Magistrates Court

Clause 1 of Schedule 2 provides that the CEO is appointed by the Governor-General for a period not exceeding 5 years.

Clause 2 provides that the CEO must give the Chief Federal Magistrate information about his or her direct and indirect pecuniary business interests.

Clause 3 provides that the CEO cannot undertake outside paid employment without the approval of the Chief Federal Magistrate.

The grounds on which the CEO's appointment can be terminated by the Governor-General are set out in clause 7. They include misbehaviour, physical or mental incapacity, bankruptcy, engaging in outside paid employment without the Chief Federal Magistrate's approval and failure to disclose a pecuniary interest without reasonable excuse.

Concluding Comments

Reasons for judgment

Different views have been expressed about provisions in the Federal Magistrates Bill which deal with reasons for decision (clause 76). The Explanatory Memorandum says, 'Of course in all substantive decisions the Court will give reasons for decision'.(61) On the other hand, the Law Council of Australia and the Victorian Bar have expressed concerns that Federal Magistrates will not be required to give sufficient reasons for judgment and about the provision for 'short form' reasons.(62)

In its submission to the Senate Legal and Constitutional Legislation Committee, the Law Council of Australia noted that sufficient reasons for decision are important to enable a '... case properly and efficiently to be laid before the higher appellate court'.(63) Other purposes served by the giving of reasons include:

• It enables the parties to see the extent to which their arguments have been understood and accepted and also the basis of the decision;
• It is an incident of judicial accountability; and
• It affords a basis for predicting how like cases might be decided in future.(64)

The giving of reasons for decision may also be significant in particular jurisdictions. Family law may be one of these. At the 1993 Conference of the Family Court of Australia, it was reported that Justice Fogarty, then of the Family Court, took the view that giving reasons for decision were important in two ways. First, they guarded against the arbitrary exercise of power. Second, they were important in the exercise of family law jurisdiction. The report stated that:

Apart from any common law duty that may exist to give sufficient reasons, is there a constitutional requirement for a Chapter III court to give sufficient reasons for decision? If federal judicial power must be exercised in accordance with judicial process, then a question might arise about whether provisions in the Federal Magistrates Bill relating to reasons fall short of the requirements of judicial process. In Public Service Board of NSW & Osmond (1986) 159 CLR 656 Gibbs CJ said:

And, in a recent article in the Australian Bar Review, Justice Michael Kirby said:

Constitutional incompatibility

In Kable, the High Court further developed the doctrine of constitutional incompatibility. Federal Magistrates (other than the Chief Federal Magistrate) may be part-time appointees [subitem 1(6) of Schedule 1]. Further, subclauses 4(1) & (2) provide that they may engage in outside work-within limits. Any difficulties with constitutional incompatibility which arise from the fact that Federal Magistrates can undertake outside work is presumably cured by subitem 4(4) which provides that the 'outside work' provisions do not limit the application of any doctrine of constitutional incompatibility.

However, perhaps a question might arise about whether it is constitutionally compatible for a Chapter III justice to hold that office in a part-time capacity.

Disallowance provisions for transfer regulations

Under clause 41, regulations may be made governing the mandatory transfer of certain proceedings from the Federal Magistrates Court to the Federal Court or the Family Court.

Subclauses 41(7), (8) & (9) set out tabling requirements and disallowance machinery for transfer regulations. In brief, transfer regulations must be tabled in both Houses of Parliament. Either House is empowered to pass a disallowance motion within 15 sitting days of the tabling. If such a motion is not passed within the required time, the transfer regulations take effect on the last day on which such a resolution could have been passed.

Subclause 41(10) provides that these provisions have effect despite anything in the Acts Interpretation Act 1901 or the Legislative Instruments Act 1999.(67)

There is are similar provisions in the Federal Magistrates (Consequential Amendment) Bill 1999 which enable regulations to be made governing the mandatory transfer of proceedings from the Family Court to the Federal Magistrates Court and from the Federal Court to the Federal Magistrates Court.(68) The disallowance provisions are the same in both Bills.

The Acts Interpretation Act contains a procedure for Parliamentary scrutiny of delegated legislation including regulations. Section 48 of the Acts Interpretation Act provides that regulations must be tabled in Parliament within 15 sitting days of being notified in the Gazette. They come into effect on the date notification or another specified day. There are two ways in which a regulation may be disallowed. The first is by either House of Parliament passing a disallowance motion within 15 sitting days of tabling in that House. The other method is by 'deemed disallowance'. A regulation will be deemed to have been disallowed if a Member or Senator gives notice within 15 sitting days of tabling that he or she will move a motion of disallowance. If that motion is not disposed of within a further 15 sitting days, then the regulation is deemed to have been disallowed.(69)

Subclauses 41(7), (8) & (9) thus depart from the provisions of the Acts Interpretation Act in a number of ways. First, rather than coming into effect on gazettal or another specified date, transfer regulations come into effect once the time for a disallowance motion has expired. Second, transfer regulations cannot be defeated by deemed disallowance. Third, the time in which a House can delay considering the regulations has been reduced to 15 sitting days rather than the present (potential) 30 sitting days after tabling. Fourth, there is no requirement for transfer regulations to be tabled within a certain number of sitting days after they are made.(70)

Transfer regulations are important instruments. They may have significant implications for the jurisdiction that can be exercised by the Federal Magistrates Court, the Family Court and the Federal Court. Of course, there may be arguments that jurisdictional matters should be dealt with in primary legislation rather than subordinate instruments. It might also be argued that Parliament should leave details of jurisdiction to the courts. Leaving these arguments aside, however, and focussing on the disallowance provisions in the Bill, it is arguable that the disallowance provisions do not leave the Parliament sufficient time to consider transfer regulations placed before it.

Endnotes

2. James Crawford, Australian Courts of Law, 3^rd ed, Oxford University Press, Melbourne, 1993.

3. A superior court is a higher court of record or general jurisdiction comprising the higher grades of judges. In Australia, superior courts include the High Court, Federal Court, Family Court, State Supreme Courts, and State District Courts. State, County and District Courts are superior courts of limited jurisdiction. See Butterworths Encyclopaedic Australian Legal Dictionary.

4. Workplace Relations and Other Legislation Amendment Act 1996 (Cwlth).

5. See, for example, Chief Justice Alastair Nicholson, 'The State of the Court', Opening Address at the Third National Family Law Conference, Melbourne, 20 October 1998; 'Attorney-General disputes Chief Justice's claim that government policy on legal aid, and the number of judges, are contributing to a crisis in the Family Court', 7:30 Report, 21 October 1998. See also Australian Law Reform Commission, Review of the Federal Civil Justice System, Discussion Paper 62, AGPS, Canberra, August 1999, Miriam Cosic, 'Uncivil war', The Australian Magazine, 21-22 August 1999, Chief Justice Alastair Nicholson, 'The case for the defence,' Financial Review, 3 September 1999, Roderick Campbell, 'Family Court slated in civil justice review', Canberra Times, 20 August 1999.

6. Only about 5 per cent of family law cases proceed to trial. See Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, The Family Law Act. Aspects of its Operation and Interpretation, AGPS, Canberra, November 1992.

7. Senate Standing Committee on Constitutional and Legal Affairs, Report on The Law and Administration of Divorce and Related Matters and the Clauses of the Family Law Bill 1974, October 1974, p 11.

8. Section 23.

9. The Government Response to the Report by the Joint Select Committee on Certain Family Law Matters' on the Funding and Administration of the Family Court of Australia commented that 'from 1976 to 1987 a two tier system of senior and junior judges existed which, due to practical difficulties, was merged'. (p 8).

10. A different structure exists in Western Australia where the Family Court of Western Australia exercises both federal and State jurisdiction in family law.

11. The exercise of these powers is reviewable de novo by a court and survived constitutional challenge in the case of Harris v. Caladine (1991) 172 CLR 84.

12. A major restriction on the use of Judicial Registrars is that they cannot make final determinations in residence or contact disputes.

13. Section 38N.

14. Section 14.

15. Section 41 of the Family Law Act enables the Commonwealth to make arrangements with the courts for the creation of State Family Courts. Only Western Australia has set up its own Family Court.

16. Section 69N.

17. Subsection 46(1).

18. For more details see, Anne Twomey, 'Trimming the Tribunals: Brandy v. Human Rights and Equal Opportunity Commission', Current Issues Brief, No.40 1994/95, Department of the Parliamentary Library, March 1995.

19. (1995) 183 CLR 245.

20. Previous citation: Human Rights Legislation Amendment Bill 1998.

21. The Family Law Council is an independent statutory organisation established under the Family Law Act 1975 (Cwlth). Its functions include advising and making recommendations to the Commonwealth Attorney-General on matters relating to family law.

22. Family Law Council, Magistrates in Family Law: An evaluation of the exercise of summary jurisdiction to improve access to family law, AGPS, Canberra, 1995, p.1.

23. ibid, p 5.

24. ibid., p 32.

25. ibid., pp 32-3.

26. Joint Select Committee on Certain Family Law Issues, Funding and Administration of the Family Court of Australia, AGPS, Canberra, November 1995, p 86.

27. Australian Law Reform Commission, Review of the Adversarial System of Litigation. Rethinking Family Law Proceedings, Issues Paper 22, November 1997, p 11.

28. ibid, p 143.

29. ibid, pp 142-144.

30. Government Response to the Report by the Joint Select Committee on the Funding and Administration of the Family Court of Australia, February 1998, p 8.

31. See Magistrate Susan Blashki, 'Access to justice on the one hand, quality of justice on the other - can this balance be achieved by a federal magistracy', paper presented at the Family Court of Australia, Third National Conference, Hotel Sofitel, Melbourne, 20-24 October 1998.

32. ibid.

33. Attorney-General, 'Future challenges for the Family Court - minimising family law litigation', Speech to the Family Court of Australia Third National Conference, 20 October 1998, Melbourne, p 3.

34. Attorney-General The Hon Daryl Williams AM QC MP 'Federal magistracy to be established', News Release, 8 December 1998.

35. National Alternative Dispute Resolution Advisory Council, The Use of Alternative Dispute Resolution in a Federal Magistracy, March 1999.

36. ibid. The 1997 paper is entitled Alternative Dispute Resolution Definitions.

37. Shadow Attorney-General, 'Federal magistracy cumbersome and complex', Media Release, 13 May 1999.

38. Shadow Attorney-General, 'Federal magistracy a sham', Media Release, 2 June 1999. 'Williams confused on federal magistracy', Media Release, 4 June 1999.

39. Shadow Attorney-General, 13 May 1999, op.cit.

40. Chief Justice Alastair Nicholson, 'Issues facing the Court and future directions: Opening Keynote Address', Speech given to the Queensland Family Law Practitioners Association Residential Conference, 30 July 1999, p 7.

41. See Law Council of Australia, Position Paper on the Proposed Federal Magistrates Court to be established under the Federal Magistrates Bill 1999 and the Federal Magistrates (Consequential Amendments) Bill 1999, Submission to the Senate Legal and Constitutional Legislation Committee, 13 August 1999. The Law Council's submission attributes these options to the Attorney-General's Department's Options for a Federal Magistracy, January 1997.

42. Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spinks v. Prentice [1999] HCA 27 (17 June 1999).

43. Attorney-General, 'Action to alleviate effects of High Court cross-vesting decision', News Release, 17 June 1999.

44. Section 71.

45. Section 71.

46. Section 72.

47. Family Law Council, Magistrates in Family Law. An Evaluation of the Exercise of Summary Jurisdiction to Improve Access to Family Law, AGPS, Canberra, July 1995, p 35.

48. ibid., p 36.

49. New South Wales v. Commonwealth (1915) 20 CLR 54 . Waterside Workers' Federation of Australia v. JW Alexander Ltd (1918) 25 CLR 434.

50. R v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.

51. That is, in the judge's individual capacity rather than in his or her capacity as a judge.

52. Hilton v. Wells (1985) 157 CLR 57 at 83.

53. (1995) 184 CLR 348.

54. (1996) 189 CLR 1.

55. (1995) 184 CLR 348 at 365 per Brennan CJ, Deane, Dawson & Toohey JJ.

56. (1996) 138 ALR 577.

57. George Williams, Human Rights under the Australian Constitution, Oxford University Press, Melbourne, 1999, p 213.

58. Sue v. Hill [1999] HCA 30 (23 June 1999) at 131 per Gaudron J. See also Nicholas v The Queen (1998) 193 CLR 173 at 207 per Gaudron J. See also R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374 per Kitto J; Harris v Caladine (1991) 172 CLR 84 at 150 per Gaudron J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 496 per Gaudron J; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 703-704 per Gaudron J; Leeth v The Commonwealth (1992) 174 CLR 455 at 502 per Gaudron J.

59. (1992) 176 CLR 1 at 26-27.

60. See, for example, Harris v. Caladine (1991) 172 CLR 84 at 150 per Gaudron J; Leeth v. Commonwealth (1992) 174 CLR 455 at 470 per Mason CJ, Dawson & McHugh JJ.

61. p 15.

62. page 24.

63. Concerns have been expressed about subclause 76(1). They have also been expressed about subclause 76(4) which enables short form reasons to be given and about subclause 76(5). See Law Council of Australia, Position Paper, op.cit., pp 24-28; Victorian Bar, Federal Magistrates Bill 1999, Federal Magistrates (Consequential Amendments) Bill 1999, 13 August 1999, p 3-4.

64. Law Council of Australia, Position Paper, op.cit., p 24.

65. ibid, pp 24-5.

66. At 666-7.

67. Justice Michael Kirby, 'Reasons for judgment: "Always permissible, usually desirable and often obligatory"', 1994 Australian Bar Review 12(2) pp 121-134.

68. There is no Legislative Instruments Act on the statute books at present and no Bill before the Parliament. Attempts to have the Parliament pass a Legislative Instruments Bill have so far failed.

69. Item 25 of Schedule 11 which inserts section 33C into the Family Law Act and item 6 of Schedule 12 which inserts section 32AC into the Federal Court of Australia Act.

70. Subsection 48(5), Acts Interpretation Act 1901.

71. Arguably, this is unnecessary because the regulations do not come into effect until the time for disallowance has expired.

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