Bills Digest No. 158 2001-02
Jurisdiction of Courts Legislation Amendment Bill
2002
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
Endnotes
Contact Officer & Copyright Details
Passage History
Jurisdiction of Courts Legislation Amendment Bill
2002
Date Introduced: 13 March 2002
House: House of Representatives
Portfolio: Attorney-General
Commencement: The amendments proposed by
Schedule 1 commence on Proclamation. The amendments proposed by
Schedule 2 commence on Proclamation or alternatively within 6
months of the Bill receiving Royal Assent.
Purpose
The major
amendments proposed by this Bill:
-
- exclude the Federal Court of Australia from hearing appeals
from judgments of the Supreme Court of the Australian Capital
Territory
-
- allow the Chief Justice of the Federal Court of Australia to
refer part of a matter to the Full Court of the Federal Court
-
- extends the appellant jurisdictional powers of the Federal
Court of Australia to provide a single judge or Full Court with
power to make an order that an appeal to the Federal Court be
dismissed for want of prosecution, or make an order that an appeal
to the Federal Court be dismissed for failure to comply with a
direction to the Federal Court, and
-
- provide for the use of video, audio and other appropriate means
for the taking of submissions and evidence in the Federal Court of
Australia.
The Supreme Court has civil, criminal and
appellate jurisdiction. Generally, the jurisdiction of the Court is
exercisable by a single Judge. Criminal trials may be heard before
a Judge and jury or by Judge alone. In civil matters the Court has
an unlimited monetary jurisdiction. An appeal lies to the Supreme
Court from the Magistrates Court, Children s Court, Small Claims
Court and various ACT tribunals (including the ACT Administrative
Appeals Tribunal).
The Supreme Court comprises a Chief Justice,
three resident Judges, nine additional Judges and a Master.
Appeals from the Supreme Court lie to the
Federal Court of Australia except from the Masters decisions which
lie with the ACT Appeals Court.
The Supreme Court of the Australian Capital
Territory was established as a superior court of record by the
Seat of Government Supreme Court Act 1933 which commenced
on 1 January 1934. The principal reason behind the establishment of
a Supreme Court was to relieve the High Court of its original
jurisdiction in respect to the Australian Capital Territory and to
provide an intermediate court of appeal between the Court of Petty
Sessions (est. 1930).
When the Supreme Court was constituted in 1933,
the Supreme Court Act provided for one Judge only; in 1958,
provision was made for "additional Judges" of other federal courts
to assist with the caseload; in 1971, the Act was amended to allow
for the appointment of a second resident Judge.
The ACT Supreme Court (Transfer) Act
1992 commenced on 1 July 1992, on which date the Supreme Court
transferred from Commonwealth to Territory administration.
The first judicial appointment to the Court by
the ACT administration was Kenneth John Crispin on 26 September
1997, resulting in the Supreme Court having four resident Judges,
including the Chief Justice. Justice Crispin was not given a
concurrent commission as Judge of the Federal Court of Australia.
This represented a departure from previous practice whereby the
Commonwealth had previously (before self-government) appointed ACT
Supreme Court Judges to also be Judges of the Federal Court of
Australia since the establishment of that Court in 1976. Appeals to
the Federal Court are currently to the ACT Supreme Court.
Before the Federal Court was established in
1976, the High Court of Australia heard all appeals from the
Supreme Court of the ACT. When the Federal Court was established it
became the intermediate appellate court for the ACT in an effort to
alleviate the burden on the High Court.(3)
The Federal Court of Australia Act 1976
confers jurisdiction on the Federal Court to hear appeals from
judgments of the Supreme Court of a Territory, other than the
Northern Territory.(4) A decision of the Federal Court
exercising appellate jurisdiction may in turn be appealed to the
High Court with special leave.(5)
When the Federal Court hears an appeal from a
judgment of the ACT Supreme Court, the Chief Justice of the Federal
Court allocates Federal Court judges to sit on the appeal, in
accordance with his statutory responsibility to ensure the orderly
and expeditious discharge of the business of the
Court.(6)
In 1999-2000, 44 appeals were filed in the
Federal Court from the ACT Supreme Court out of a total of 407
appellate filings in that year from all sources. This represents a
little under 11% of the Federal Court's appellate
workload.(7)
In January 2000 the Attorney-General asked the
Australian Law Reform Commission to consider whether the
Judiciary Act 1903 (Cth) ensures the most appropriate
arrangements are in place for the efficient administration of law
and justice in the federal jurisdiction.(8)
The Australian Law Reform Commission identified
a number of problems associated with the ACT being the only State
or mainland Territory in which a first appeal lies to a Full Court
of the Federal Court rather than to a Full Court or Court of Appeal
of a Supreme Court, including:
-
- In the past, all ACT Supreme Court judges were appointed with
dual commissions on the Federal Court. Where an appeal was taken
from a judgment of an ACT Supreme Court judge, a Full Court of the
Federal Court would generally include one resident ACT Supreme
Court judge among its members. The practice of dual commission
ceased in 1997, leaving just two ACT judges as members of the
Federal Court.
-
- Section 25(3) of the Federal Court of Australia Act
1976 (Cth) requires a Full Court of the Federal Court, when
hearing an appeal from the ACT Supreme Court, to include at least
one judge of the ACT Supreme Court unless the Chief Justice of the
Federal Court considers it impracticable to do so. One consequence
of this is that an appeal from a decision of Chief Justice Miles is
generally heard by a bench including Justice Higgins, while an
appeal from a decision of Justice Higgins is generally heard by a
bench including Chief Justice Miles. In consultations and
submissions, this was widely regarded as unsatisfactory. This
structural problem was thought to encourage litigants to view the
outcome of an appeal as unduly dependent on the composition of the
appellate bench.
-
- In 1997, the ACT government released a discussion paper, which
listed the following additional disadvantages of the present system
of appeals from the ACT Supreme Court:
Under the present system, the ACT government has
no control over the appeals process. Remedies for any problems in
the system can only be provided by the 'cumbersome and time
consuming' process of achieving Commonwealth legislative amendment.
This situation is contrary to the concept of the ACT as 'a separate
body politic responsible to its own electors'.(9)
The ACT government has no control over the
selection of judges who hear appeals as all judges who sit on Full
Federal Court appeals from the ACT are allocated to such appeals by
the Chief Justice of the Federal Court.(10)
The Federal Court has a different focus from the
ACT Supreme Court and many judges sitting on appeals may have
little familiarity with the issues arising on appeal. For example,
Federal Court judges may lack the judicial experience needed to
exercise discretions to ensure fairness in jury trials and
sentencing in criminal appeals.(11)
Lack of experience and familiarity of Federal
Court judges with ACT appeals could create the perception on the
part of litigants and lawyers that the resident ACT judge who sits
on an appeal has disproportionate influence over his less
experienced colleagues. Appeals are thus seen to lie from one
resident judge to another, and the prospects of success are seen as
dependent upon the tendencies of the resident judge on
appeal.(12)
There is an anomaly in the availability of
appeals from some decisions of a Full Court of the Supreme Court to
a Full Court of the Federal Court, which may protract an already
expensive and lengthy appellate process. For example, an appeal
from a Master of the ACT Supreme Court lies to the Full Court of
the ACT Supreme Court and then to the Full Court of the Federal
Court constituted by a panel of five judges, before progressing to
the High Court.
In its Report, the Australian Law Reform
Commission stated that an agreement had been reached between the
Commonwealth and the ACT government regarding the establishment of
a Court of Appeal for the ACT.(13) The Australian Law
Reform Commission supported the Commonwealth and ACT governments
initiative and recommended:
-
- The ACT legislature should consider establishing an
intermediate appellate court for the ACT with jurisdiction to hear
appeals from a single judge of the Supreme Court of the ACT
-
- Once established, section 24 of the Federal Court of
Australia Act 1976 (Cth) should be amended to preclude appeals
being taken to the Federal Court from the Supreme Court of the ACT,
and
-
- Section 35AA of the Judiciary Act 1903 (Cth) should be
amended to provide that appeals from a decision of a single judge
of the Supreme Court of the ACT may be made only to the ACT Court
of Appeal, and then by special leave to the High
Court.(14)
In 2001 the ACT Legislative Assembly passed the
Supreme Court Amendment Act 2001 (ACT). The Act
established an ACT Court of Appeal to hear appeals from the ACT
Supreme Court. The court operates as a division of the existing
Supreme Court. The court itself comprises all ACT Supreme Court
judges-resident, additional and acting. The president of the Court
of Appeal is responsible for the orderly and expeditious discharge
of the business of the court. There is scope under the legislation
to appoint interstate judges or retired judges to the Supreme Court
and they are able to sit on the Court of Appeal.
The Act sets out the way in which the court
operates. The court is constituted by three judges with,
ordinarily, at least one resident judge on the bench and the most
senior resident judge presiding. A single judge is able to exercise
the jurisdiction of the court in preliminary and procedural
matters. A judge is not able to hear an appeal about a decision the
judge gave.
The Act also provides that, where a judge is no
longer able to continue hearing an appeal, two judges may continue
to hear the appeal as long as the parties consent. It also allows
the rules of court to deal with the time of initiating appeals and
how they are instituted.
The Act while receiving bi-partisan support in
the ACT Assembly, did provide a vehicle for criticism of the
Commonwealth s stance with respect to the issue of the appointment
of resident judges to the Federal Court of Australia. For example,
in the debates on the Supreme Court Amendment Bill 2001, the then
leader of the Opposition, John Stanhope, stated:
The need for a separate court of appeal has
arisen through the refusal of the Commonwealth to appoint new
resident judges, most specifically Justices Crispin and Gray, to
the Federal Court. The ACT Law Reform Commission recommended in a
report signed by Justice Crispin that the ACT establish a separate
court of appeal.
As a digression, I continue to regret, as I
think we all do, that the Commonwealth has taken the attitude it
has in relation to the Federal Court. I still struggle to
understand why the Commonwealth felt the need to take that action,
given the impact it has on the administration of justice in the
ACT.
There should be no need for new judges to be
appointed to the ACT Supreme Court, apart from the president, if
that role is not to be performed by a current judge. I do not know
what the Attorney's views on that are, but if he wishes to express
a view on it in this debate I would be quite
interested.(15)
The sentiments of the then Opposition leader
were also echoed in remarks made by the then Attorney-General and
Minister for Education, Bill Stefaniak who stated:
in reply: I thank Mr Stanhope for his comments
and support. I agree with his comments in relation to the
Commonwealth's action in not appointing our two most recent judges
as members of the Federal Court and their clear action in
indicating that such appointments will not happen again. That has
precipitated the need for us to establish our own Court of
Appeal.
One of the benefits is that we will have our own
court of appeal. Most of the matters which are appealed from the
Supreme Court to the Federal Court are related to issues which
normally do not go before the Federal Court in the rest of
Australia-state-type issues like commercial law and criminal law,
not bankruptcy and things which are totally the prerogative of the
Federal Court in other jurisdictions in the Commonwealth of
Australia.
I think there are positives. Mr Stanhope is
quite right. Had the federal government not gone down the path of
not appointing more recent judges as members of the Federal Court,
we would not necessarily have taken this legislative step.
I do not think reference appeals occur very
often. I have a short note here saying that there are two cases the
DPP can remember in the immediate past. That accords with my
recollections over the last 10 years.
I do not think it is possible to overestimate
the importance of a respected and authoritative appellate court in
the ACT. I certainly hope the arrangements we are setting in place
will serve to instil even greater confidence than already exists in
our judicial system in the ACT.
In agreeing with Mr Stanhope about what the
federal government has done with the Federal Court, I do not wish
to belittle the competent service that has been extended to the
people of the ACT by the Federal Court over past decades. However,
that court does serve broader and different purposes, and the
respected and learned judges of that court have discharged, and I
understand will continue to discharge as additional judges of the
ACT Supreme Court, an onerous burden with
distinction.(16)
Note: This Bill is the same in substance
as the Jurisdiction of Courts Legislation Amendment Bill 2001 which
was introduced into the House of Representatives on 27 September
2001. That Bill lapsed when Parliament was prorogued.
Paragraph 24(1)(b) of the Federal Court of
Australia Act 1976 (Cth) provides that the Federal Court has
jurisdiction to hear appeals from judgments of the Supreme Court of
a Territory. The effect of item 1 of
Schedule 1 is to exclude the Federal Court from
hearing appeals from judgments of the Supreme Court of the
Australian Capital Territory.
Paragraph 24(1)(c) of the Federal Court of
Australia Act 1976 (Cth) provides that the Federal Court has
jurisdiction to hear appeals from judgments of a court of a State,
other than a Full Court of the Supreme Court of a State, exercising
federal jurisdiction in such cases as are provided by any other
Act. The effect of item 2 of Schedule
1 is to ensure that the Federal Court can hear appeals
from the Supreme Court of the Australian Capital Territory or the
Northern Territory exercising federal jurisdiction, other than Full
Courts of the two Territories.
Subsection 32A(1) of the Federal Court of
Australia Act 1976 (Cth) provides that in any matter pending
in the Federal Court, the Supreme Court of a State is invested with
federal jurisdiction, and, to the extent that the Constitution
permits, jurisdiction is conferred on the Supreme Court of the
Northern Territory, to hear and determine any application that may
be made to a Judge of the first-mentioned court sitting in
Chambers. Item 7 of Schedule 1 of
the Bill amends subsection 32A(1) to include the Supreme Court of
the Australian Capital Territory.
Subsection 35AA(1) of the Judiciary Act
1903 (Cth) provides that the High Court has jurisdiction to
hear and determine appeals and judgments from the Supreme Court of
the Northern Territory. The effect of item 9 of
Schedule 1 of the Bill is to provide the High
Court with jurisdiction to hear and determine appeals and judgments
from both the Supreme Court of the Northern Territory and the
Australian Capital Territory.
A new subsection 35AA(2) is
inserted in the Judiciary Act 1903 (Cth) by item
10 of Schedule 1 that will prevent an
appeal being brought to the High Court from a judgment of the
Supreme Court of the Australian Capital Territory when that Court
is known as the Court of Disputed Elections under the Electoral
Act 1992 (Act).
Subsection 21(1A) of the Federal Court of
Australia Act 1976 (Cth) provides that where the Chief Justice
considers that a matter coming before the Court in the original
jurisdiction of the Court is of sufficient importance to justify
the giving of a direction he/she may direct that the jurisdiction
of the Court in that matter shall be exercised by a Full Court. The
effect of item 6 of Schedule 2 of
the Bill is to ensure that the Chief Justice of the Federal Court
has the power to refer part of a matter, in addition to a whole
matter, to the Full Court of the Federal Court.
New subsections 20(3)-20(6) are
inserted in the Federal Court of Australia Act 1976 (Cth)
by item 9 of Schedule 2 of the
Bill. The proposed provisions relate to the original jurisdiction
of the Court. The effect of new subsection 20(3)
is to provide that a single Judge or the Full Court may hear or
determine an application:
-
- for leave or special leave to institute proceedings in the
Court
-
- for an extension of time within which to institute proceedings
in the Court
-
- for leave to amend the grounds of an application or appeal to
the Court, or
-
- to stay a decision of a tribunal or authority mentioned in
subsection 20(2).
New subsection 20(4) provides
that the Federal Court Rules of Court may provide for applications
of the kind mentioned in subsection 20(3) to be dealt with, subject
to conditions prescribed by the Rules, without an oral
briefing.
New subsection 20(5) provides
that in matters coming before the Federal Court under subsection
20(2) (ie. from a Tribunal or Authority), a single Judge or the
Full Court may:
-
- join or remove a party
-
- make an order (including for costs) by consent disposing of the
matter
-
- make an order that the matter be dismissed for want of
prosecution
-
- make an order that the matter be dismissed for failure to
comply with a direction of the Court, and
-
- give directions about the conduct of the matter, including
directions about the use of written submissions and limiting the
time for oral argument.
Section 25 of the Federal Court of Australia
Act 1975 (Cth) deals with the appellant jurisdiction of the
Federal Court. The effect of item 11 of
Schedule 2 of the Bill extends the appellant
jurisdictional powers of the Federal Court to provide a single
judge or Full Court with power to:
-
- make an order that an appeal to the Federal Court be dismissed
for want of prosecution, or
-
- make an order that an appeal to the Federal Court be dismissed
for failure to comply with a direction of the Federal Court.
Item 22 of Schedule
2 of the Bill inserts new sections
47A-47G in the Federal Court of Australia Act relating to
the use of video, audio and other appropriate means for the taking
of submissions and evidence. As noted in the Explanatory Memorandum
to the Bill, the provisions are modelled on sections 66-73 of the
Federal Magistrates Act 1999 (Cth).
-
- The following outline of the Supreme Court of the Australian
Capital Territory is drawn from:
http://www.supremecourt.act.gov.au/content/about_us_history.asp?textonly=no
- The following outline of the history of the Supreme Court of
the Australian Capital Territory is drawn from
http://www.supremecourt.act.gov.au/content/about_us_history.asp?textonly=no
- Australian Law Reform Commission, The Judicial Power of the
Commonwealth, Report 92, October 2001, p. 659.
- ibid.
- ibid.
- ibid.
- ibid., at p. 660.
- Improving the operation of the Federal Judicial System ,
Attorney-General, News Release No. 1063, 3 October 2001
- Australian Law Reform Commission, The Judicial Power of the
Commonwealth, Report 92, October 2001, pp. 664 and 665.
- Ibid.
- ibid.
- ibid.
- ibid., at p. 668.
- ibid., at p. 670.
- http://www.hansard.act.gov.au/hansard/2001/week08/2758.htm
- http://www.hansard.act.gov.au/hansard/2001/week08/2759.htm
Ian Ireland
30 May 2002
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