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
Contact Officer & Copyright Details
Federal Magistrates Bill
Date Introduced: 24 June 1999
House: House of Representatives
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).
To establish a Federal Magistrates Court.
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
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.
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
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
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
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
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
The question raised by this inquiry is how to
achieve a balance between quick and inexpensive access to justice
on the one hand and quality of justice on the other. There is no
point in having a superb system of justice which is fair in every
way if it is inaccessible to all but the very rich. Equally there
is no point in a readily accessible system of justice which
provides justice that is so rough as to constitute no justice at
After considering a number of possible models
for reform, the Council recommended that:
... specialist family law magistrates comprising
both Family Court magistrates and interested State and Territory
magistrates ...[be appointed to address] the need to improve the
quality of the services provided [within family law summary
jurisdiction]. Enhancing the facilities provided in State and
Territory magistrates' courts will also improve the quality of
justice provided to people who do not have ready access to a Family
Court Registry. At the same time the Council's recommendation to
maintain the jurisdiction of State and Territory magistrates'
courts in suburban and rural areas for the present will ensure that
all Australians continue to have ready access to justice.(22)
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:
... that the present three tier judicial
structure of the Court which consists of judges, judicial
registrars and registrars be replaced by a two tier system of
judges and magistrates. ... This proposal reflects the Court's view
that the current three tier structure is cumbersome, confusing,
procedurally difficult, does not provide uniform access across
registries and mixes administrative and judicial responsibilities
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:
.. arose from concerns that legal proceedings in
Australia are excessively adversarial and that this produces undue
delay, cost and unfairness in litigation.(26)
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
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:
Recent developments elsewhere in the Australian
judicial system (such as in the industrial relations jurisdiction
and the Human Rights and Equal Opportunity Commission) have
indicated that a Federal Magistracy could be a useful method by
which the case load strain on the Federal Courts could be relieved
and by which certain matters could be resolved more quickly and
less formally so as to enable cheaper and more accessible
adjudication of claims.(29)
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:
A number of options could be considered,
including increasing the federal jurisdiction exercised by the
states and territories, and appointing magistrates directly to the
Federal and Family Courts. I prefer a separate federal magistracy
as the best way to ensure maximum flexibility and simplified
procedures. These simpler procedures, together with a judicial and
professional culture focussed on resolving simpler disputes, are
crucial to reducing delays. The most efficient arrangements would
be for the magistrates to share the accommodation and
administrative structures of the existing federal courts. This is
the most cost effective and efficient solution addressing both
delay and structural problems in the Family and Federal
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:
With a less formal judicial culture and more
streamlined procedures than those of the existing federal courts, a
magistracy would also reduce costs for litigants because:
- solicitors' expenses would be reduced;
- barristers are less likely to be briefed;
- reduced waiting times would lessen legal costs and costs
incurred by litigants through lost time and wages;
- the magistracy would have a fixed costs regime which would mean
more certainty as to the costs of litigation and would be welcomed
by the parties, including small business, who are not as well
resourced as others; and
- access to magistrates in regional areas would reduce litigants'
travel and associated expenses.
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
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:
... suitable State and Territory magistrates
joint Federal and State commissions and ensure they have the
training and support necessary to get the job done.(38)
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 Court's position is that its fragmentation
of its closely integrated system in the way contemplated by the
Bill will result in a less satisfactory service to the Australian
community and will incur unnecessary expense to the taxpayer. The
potential for public confusion, forum shopping and waste of
resources on shuffling matters between courts is high. The funds
proposed to be spent on the Federal Magistrates Court could be used
far more effectively by providing Magistrates within the framework
of the Family Court of Australia.(39)
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
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.
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
In 1990, the then Commonwealth Solicitor-General
made the following statement about the creation of a family court
[The Constitution] lays down mandatory
requirements for the appointment, removal and remuneration of the
justices of federal courts which have their roots in the
prescription for judicial independence contained in the Act of
Settlement of 1770. This assumption that a federal court will be
comprised of Justices has traditionally been interpreted as
preventing both the establishment of a Family Court Magistracy and
the exercise of judicial power by inferior courts.(46)
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
Judicial independence and judicial
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
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
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 general qualification that what is
entrusted to a judge in his individual capacity is not inconsistent
with the essence of the judicial function and the proper
performance by the judiciary of its responsibilities for the
exercise of judicial power.(51)
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:
Incompatibility might consist in so permanent
and complete a commitment to the performance of non-judicial
functions by a judge that the further performance of substantial
judicial functions by that judge is not practicable. It might
consist in the performance of non-judicial functions of such a
nature that the capacity of the judge to perform his or her
judicial functions with integrity is compromised or impaired. Or it
might consist in the performance of non-judicial functions of such
a nature that public confidence in the integrity of the judiciary
as an institution or in the capacity of the individual judge to
perform his or her functions with integrity is diminished.(54)
Most recently, the High Court's decision in
Kable v. Director of Public Prosecutions (NSW)(55)
suggests that the incompatibility doctrine is a freestanding
... an independent limitation, arising from
Chapter III, on the power of state and federal parliaments to
confer power on, or shape, any federal court or state supreme
The incompatibility doctrine might thus be
relevant when Parliament creates a new federal court and new
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
Nor do those [section 51] grants of legislative
power extend to the making of a law which requires or authorises
the court in which the judicial power of the Commonwealth is
exclusively vested to exercise judicial power in a manner which is
inconsistent with the essential character of a court or with the
nature of judicial process.(58)
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
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
Creation of a Federal Magistrates
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:
The proceedings of courts of record are
preserved and are called records. Records are conclusive evidence
of that which is recorded. ... A court of record retains its
identity despite changes in its membership or the procedures by
which it arrives at its decisions. Where a court is declared a
court of record by statute it only has such powers as are conferred
by the legislature and can enforce those powers only by the means
conferred by statute.
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
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
The expression 'primary dispute resolution' is
defined in clause 21 to include counselling,
mediation, arbitration, neutral evaluation, case appraisal and
Clause 22 requires the Federal
Magistrates Court consider advising parties before it about primary
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
Clause 24 imposes a duty on
lawyers to consider advising their clients about primary dispute
Officers of the Federal Magistrates Court must
as far as practicable advise people about primary dispute
resolution processes if asked to do so (clause
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
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
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
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)
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
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
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
Clause 46 allows the Federal
Magistrates Court to issue subpoenas to give evidence or produce
documents, or both.
Documents filed with the Federal Magistrates
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.
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
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
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.
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
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
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 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) &
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
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
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
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
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
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.
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'
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
- It enables the parties to see the extent to which their
arguments have been understood and accepted and also the basis of
- 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:
Where a judicial discretion was exercised in a
matter affecting property arrangements, maintenance, custody, or
access to children, the litigant was entitled to know how the judge
reached his or her conclusion. It was incumbent upon the primary
judge to recognise that, in most instances, the decision would be
final between the parties, especially in the light of the
difficulty in Australia in securing effective appellate review of a
discretionary decision. Professionalism and integrity required that
the judge should expose the reasons for decision. The litigant may
not like the decision or the reasons but at least the anger
engendered by arbitrary, unexplained decision-making would be
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
It has long been the traditional practice of
judges to express the reasons for their conclusions by finding the
facts and expounding the law ... and there have been many cases ...
in which it has been held that it is the duty of a judge or
magistrate to state his reasons. That does not mean that a judicial
officer must give his reasons in every case; it is clear, ... that
there is no "inflexible rule of universal application" that reasons
should be given for judicial decisions. Nevertheless, it is no
doubt right to describe the requirement to give reasons ... as "an
incident of the judicial process", subject to the qualification
that it is a normal but not a universal incident.(65)
And, in a recent article in the Australian
Bar Review, Justice Michael Kirby said:
... judicial officers must conform to a high
code of patent lawfulness and fairness in the performance of their
duties. This obligation derives from the fact that they are the
judiciary and, as such, part of the permanent government of the
country. With their tenure and power go many obligations to justify
the tenure and put a check on the power. The giving of reasons is
part of what it is to be a judicial officer today in Australia and
although there are limits, the trend of authority has confined
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
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
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
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
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.
- James Crawford, Australian Courts of Law,
3rd ed, Oxford University Press, Melbourne, 1993.
- 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
- Workplace Relations and Other Legislation Amendment Act
- 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.
- 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,
- 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.
- Section 23.
- 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).
- A different structure exists in Western Australia where the
Family Court of Western Australia exercises both federal and State
jurisdiction in family law.
- 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.
- A major restriction on the use of Judicial Registrars is that
they cannot make final determinations in residence or contact
- Section 38N.
- Section 14.
- 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.
- Section 69N.
- Subsection 46(1).
- 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.
- (1995) 183 CLR 245.
- Previous citation: Human Rights Legislation Amendment Bill
- 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.
- 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.
- ibid, p 5.
- ibid., p 32.
- ibid., pp 32-3.
- Joint Select Committee on Certain Family Law Issues,
Funding and Administration of the Family Court of
Australia, AGPS, Canberra, November 1995, p 86.
- Australian Law Reform Commission, Review of the Adversarial
System of Litigation. Rethinking Family Law Proceedings,
Issues Paper 22, November 1997, p 11.
- ibid, p 143.
- ibid, pp 142-144.
- 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.
- 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.
- 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
- Attorney-General The Hon Daryl Williams AM QC MP 'Federal
magistracy to be established', News Release, 8 December
- National Alternative Dispute Resolution Advisory Council,
The Use of Alternative Dispute Resolution in a Federal
Magistracy, March 1999.
- ibid. The 1997 paper is entitled Alternative Dispute
- Shadow Attorney-General, 'Federal magistracy cumbersome and
complex', Media Release, 13 May 1999.
- Shadow Attorney-General, 'Federal magistracy a sham', Media
Release, 2 June 1999. 'Williams confused on federal
magistracy', Media Release, 4 June 1999.
- Shadow Attorney-General, 13 May 1999, op.cit.
- 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.
- 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.
- Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re
Brown; Ex parte Amann; Spinks v. Prentice  HCA 27 (17
- Attorney-General, 'Action to alleviate effects of High Court
cross-vesting decision', News Release, 17 June 1999.
- Section 71.
- Section 71.
- Section 72.
- 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.
- ibid., p 36.
- New South Wales v. Commonwealth (1915) 20 CLR 54 .
Waterside Workers' Federation of Australia v. JW Alexander
Ltd (1918) 25 CLR 434.
- R v. Kirby; Ex parte Boilermakers' Society of
Australia (1956) 94 CLR 254.
- That is, in the judge's individual capacity rather than in his
or her capacity as a judge.
- Hilton v. Wells (1985) 157 CLR 57 at 83.
- (1995) 184 CLR 348.
- (1996) 189 CLR 1.
- (1995) 184 CLR 348 at 365 per Brennan CJ, Deane, Dawson &
- (1996) 138 ALR 577.
- George Williams, Human Rights under the Australian
Constitution, Oxford University Press, Melbourne, 1999, p 213.
- Sue v. Hill  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.
- (1992) 176 CLR 1 at 26-27.
- 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.
- p 15.
- page 24.
- 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.
- Law Council of Australia, Position Paper, op.cit., p 24.
- ibid, pp 24-5.
- At 666-7.
- Justice Michael Kirby, 'Reasons for judgment: "Always
permissible, usually desirable and often obligatory"', 1994
Australian Bar Review 12(2) pp 121-134.
- 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.
- 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.
- Subsection 48(5), Acts Interpretation Act 1901.
- Arguably, this is unnecessary because the regulations do not
come into effect until the time for disallowance has expired.
9 September 1999
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