Bills Digest no. 46 2006–07
Judiciary Legislation Amendment Bill 2006
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
Financial implications
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Judiciary Legislation Amendment Bill
2006
Date introduced: 13 September 2006
House: Senate
Portfolio: Attorney-General
Commencement: Date of Royal Assent
This is a technical Bill dealing with the exercise of summary
jurisdiction by State courts. The Bill has two main purposes. The
first is to give effect to purported orders made by non-judicial
officers of State courts of summary jurisdiction contrary to
paragraph 39(2)(d) of the Judiciary Act 1903, by providing
that the rights and liabilities of all persons are the same as if
each such order had been an order made by the court in the exercise
of its federal jurisdiction.(1)
As Senator Nick Minchin stated when introducing the Bill to the
Senate:
This will place State summary courts in the same
position as State district, county and supreme courts, enabling
States to determine, subject to constitutional requirements, which
class of officer may exercise federal jurisdiction and in what
circumstances. These amendments ensure that State summary courts
may be constituted in the same way for the purpose of exercising
federal jurisdiction as they are for the purpose of exercising
State jurisdiction.(2)
The second purpose of the Bill is to rectify a problem which
arose in the family law jurisdiction when the Government added a
new Part XIVB to the Family Law Act 1975 by the
commencement of the Family Law Amendment (Shared Parental
Responsibility) Act 2006. This was in response to evidence
that a large number of family law consent orders were made contrary
to paragraph 39(2)(d). Part XIVB provides that the rights and
liabilities of all persons are the same as if each such order had
been an order made by the court in the exercise of its federal
jurisdiction. The Government has now explained:
Since the commencement of Part XIVB, it has become
apparent that orders other than those covered by Part XIVB have
been made contrary to paragraph 39(2)(d). This Bill will repeal
Part XIVB and provide for new similar provisions to cover all
ineffective orders, not just family law orders.(3)
Cross-vesting of federal jurisdiction in State courts is a
complex area of constitutional law. Under s 77(iii) of the
Constitution, the Commonwealth Parliament may invest any court of a
State with federal jurisdiction with respect to any of the matters
mentioned in ss 75 and 76. Since 1903, great reliance has been
placed on state courts exercising federal jurisdiction and they
continue to play a significant role in federal civil matters.
The Constitution stipulates that federal jurisdiction conferred
on a State court may be exercised by a registrar or other officer
who is an integral part of the organisation of the court, as it is
constituted under State law (see The Commonwealth v Hospital
Contribution Fund (1982) 150 CLR 49). See further Australian
Law Reform Commission Report
92, The Judicial Power of the Commonwealth: A Review of the
Judiciary Act 1903 and Related Legislation , July 2001.
Paragraph 39(2)(d) of the Judiciary Act 1903 states:
Exercise of federal jurisdiction by State
Courts of summary jurisdiction
(d) The federal jurisdiction of a Court of summary
jurisdiction of a State shall not be judicially exercised except by
a Stipendiary or Police or Special Magistrate, or some Magistrate
of the State who is specially authorized by the
Governor‑General to exercise such jurisdiction, or an
arbitrator on whom the jurisdiction, or part of the jurisdiction,
of that Court is conferred by a prescribed law of the State, within
the limits of the jurisdiction so conferred.
The effect of paragraph 39(2)(d) is that registrars and other
non-judicial officers of State courts of summary jurisdiction do
not have jurisdiction to make certain orders in federal matters,
such as default orders. A corresponding provision, subsection 68(3)
of the Judiciary Act, provides for similar restrictions in relation
to the exercise of federal jurisdiction in criminal cases.
This bill would remove the limitation in paragraph 39(2)(d) of
the Judiciary Act, but State courts exercising Federal jurisdiction
are still subject to constitutional requirements. The
question therefore is whether in removing the certainty of the
Judiciary Act restriction, even if it was honoured more in the
breach than observance, is the Commonwealth opening up possible
challenges to past and future orders?
These requirements in relation to review of decisions of
non-judicial officers are discussed in Harris v
Caladine (1990) 172 CLR 84. Basically, the High Court decided
such delegation was permissible as long as judges continue to bear
the major responsibility for the exercise of judicial power, and
that a non-judicial officer's decision is subject to review or
appeal by a judge.
In Harris v Caladine the High Court upheld, by a
majority of five to two, the delegation of power to a registrar to
make a consent order, that is, an order putting into effect an
agreement between the parties. The consent order concerned the
division of property between husband and wife in a family law
matter. In making its decision, the High Court also arguably upheld
the validity of s.37A of the Family Law Act which said that judges
of the Family Court could generally delegate their powers to
registrars, except the power to make orders in contested
proceedings regarding the dissolution of a marriage, the validity
of a marriage, or custody, welfare, guardianship or access in
relation to a child of a marriage. A key factor in the Court
upholding the delegation was the availability of rehearing de novo
from the registrar's order to a judge of the Court. The
availability of such a review was seen as necessary to ensure that
the court acted judicially.
An analysis of this case shows that that there is some
uncertainty regarding the extent to which matters can be delegated
to judicial registrars, as Chapter III of the Constitution requires
judges to have a high degree of control over the exercise of that
power. This was considered at some length by the Senate Legal and
Constitutional Affairs Committee when considering the provisions of
the Human Rights Legislation Amendment Bill 1996 in June 1997.
The Committee noted in
Chapter Three of their report that two of the majority judges
in Harris v Caladine, Mason CJ and Deane J, observed that
a delegation must not be to the extent that "it can no longer
properly be said that, as a practical as well as a theoretical
matter, the judges constitute the court".(4) The
Committee reported:
3.20 It has been suggested in the Australian
Journal of Family Law that this requirement that "the judges
constitute the court" does not restrict the subject matter which
may be delegated to registrars, although it would be wise to
confine delegations to subsidiary matters. However, the Committee
has received evidence from Mr Peter Bailey of the ANU Law Faculty
to the contrary. It is strongly arguable that Mason CJ and Deane J
did in fact intend to restrict the subject matters that may be
delegated. After setting out the requirement that the "judges
constitute the court", they stated:
This means that the judges must continue to
bear the major responsibility for the exercise of judicial power,
at least in relation to the more important aspects of contested
matters.
We must emphasise that the role of the
officers of the Court such as Judicial Registrars and Registrars is
secondary to that of the judges. The role of the officers is to
assist the judges in the exercise of the jurisdiction, powers and
functions of the Court. Although it is a commonplace characteristic
of modern courts that officers such as masters and registrars
exercise jurisdiction, powers and functions in a wide variety of
matters, those matters are, generally speaking, subsidiary in
importance to matters which are heard and determined by
judges.(5).
The Committee also noted advice from the Attorney-General s
Department at paragraph 3.23 and 3.25 showing that the matters a
registrar can properly determine may not be clear cut:
3.23 In a letter to the Committee the
Attorney-General's Department advised that "generally, judicial
registrars hear less complex matters or those concerning only a
small amount of money", and noted that complex matters can be sent
back to judges. The Department has also advised that the sum
involved "does not always indicate the importance or difficulty of
the issues". The criteria for importance may really be whether a
proceeding involves interpreting law or assessing the credibility
of witnesses. Further, an order requiring something to be done,
such as an order that a respondent re-employ an applicant, could be
of greater importance to the applicant, and possibly of greater
financial significance, than the damages claimed.
3.25 The Attorney-General's Department has advised
that it is unlikely Harris v Caladine will be
overruled, that is, it is unlikely the High Court will find that
no judicial power can be delegated to registrars. However,
the Department has noted that, given the recent trend of High Court
decisions touching on the separation of powers, future High Court
decisions in this area may take a narrower view of the extent to
which judicial power can be delegated to
registrars.(6)
These issues were also analysed by the Family Law Council in its
Proposal for a new process for dealing with post-contact disputes
submission to the inquiry into shared parenting dated 13
November 2003.
Given that the Bill specifically relates only to summary orders,
it is unlikely to breach constitutional requirements, but it is a
question of substance that State courts may have to manage
carefully.
The question therefore arises, why remove the Judiciary Act
limitations at this point? Partly it was noted in the second
reading speech that State courts have been acting in contravention
of the provisions in family law and taxation matters and causing
uncertainty to affected parties. The Government has decided in
response as a matter of practicality to therefore remove the
limitation.
The other reason is stated in terms of policy. According to the
Government, the previous legal position is based on a historical
position which has changed. Traditionally, stipendiary magistrates
and lay magistrates both exercised summary jurisdiction in States
courts. Stipendiary magistrates were legally qualified full-time
adjudicators, while lay magistrates were not. This was based on
concerns that persons exercising the judicial power of the
Commonwealth should be suitably qualified. Paragraph 39(2)(d) and
subsection 68(3) were intended to address this concern. When
introducing the Bill, Senator Minchin stated:
However, today State statutes generally require
magistrates to be legally qualified and State courts of summary
jurisdiction have evolved considerably in the past 100 years. I am
confident the States will ensure that both federal and State
jurisdiction are exercised only by suitably qualified
people.(7)
Senator Nick Minchin described the factual circumstance that
gave rise to the need for the second part of the Bill during the
second reading speech as follows:
In December 2005, the Government was informed that
registrars in the Victorian Magistrates Court had been purporting
to exercise federal family law jurisdiction, contrary to the
restrictions in paragraph 39(2)(d), by making consent orders in
relation to family law matters. Consequently, all State and
Territory Attorneys-General were contacted to remind them of the
restrictions in the Judiciary Act. The Government also asked all
State Attorneys-General to advise how widespread the practice was
of non-judicial officers in State summary courts exercising federal
jurisdiction in contravention of paragraph 39(2)(d).
While waiting for a response from State and
Territory Attorneys-General, amendments were introduced in the
Family Law Amendment (Shared Parental Responsibility) Act
2006 to effectively validate the ineffective family law orders
as a matter of urgency. This provided certainty for parties
involved in proceedings in which ineffective family law orders had
been made.
It subsequently became apparent that in some
States orders have been made contrary to paragraph 39(2)(d) in
relation to taxation and other federal law matters. Parties to
proceedings involving ineffective orders have acted on the
assumption that the orders were valid and could be relied upon.
Consequently, this bill creates new statutory rights and
liabilities for parties that may be exercised and enforced in the
same manner as valid orders of the relevant court. These provisions
will provide certainty for these parties and avoid unnecessary
legal challenges.(8)
The Government asserts that:
subject to the requirements of the Constitution,
it is generally not desirable for the States to have to put in
place different arrangements for the handling by State courts of
matters in federal jurisdiction. This obviously reduces their
flexibility to deal with what are no doubt busy workloads.
State registrars already make the same kinds of
orders in State jurisdiction which the Judiciary Act currently
prevents them from making in federal jurisdiction. These amendments
will allow the States to determine which officers, including
non-judicial officers such as registrars, can exercise federal
jurisdiction. By doing so this bill contributes to achieving a more
accessible, efficient and flexible civil justice
system.(9)
The Financial Impact Statement in the Explanatory Memorandum to
the Bill states that the amendments are not expected to have any
significant financial impact.(10)
Part 1 contains amendments to the Judiciary
Act 1903.
Item 1 repeals existing paragraph 39(2)(d) to
remove the requirement that in a State court of summary
jurisdiction, federal jurisdiction may only be exercised by a
magistrate or an arbitrator. Note the limits set out by the
Commonwealth Constitution on the exercise of Federal jurisdiction
by State Courts remains as explained in the Background section of
this Digest.
Item 3 repeals subsection 68(3) to remove the
requirement that the federal jurisdiction of State and Territory
courts under subsection 68(2) of the Judiciary Act must be
exercised only by a Judge or magistrate. Again, constitutional
limits apply as explained in the Background section of this
Digest.
Items 4 and 5 make consequential amendments,
repealing subsection 8(5) of the Commonwealth Places
(Application of Laws) Act 1970 and amending subsection
15A(1ACA) of the Crimes Act 1914.
Item 6 repeals Part XIVB of the Family Law
Act 1975. The Explanatory Memorandum states that:
Part XIVB is no longer necessary as Part 2 of
Schedule 1 to this Bill effectively validates all orders made
contrary to paragraph 39(2)(d) by non-judicial officers of State
courts of summary jurisdiction, including family law orders
previously dealt with by Part XIVB.(11)
Part 2 inserts new provisions dealing with past
orders.
Item 7 inserts definitions of the terms used in
Part 2 such as non-judicial officer. The Explanatory
Memorandum states that this amendment:
makes it clear that the Part only applies to
orders purported to be made by officers of State courts of summary
jurisdiction who are not officers of the kind referred to in
repealed paragraph 39(2)(d) of the Judiciary Act. This definition
includes (as well as other officers) registrars of State courts of
summary jurisdiction.(12)
Item 8 defines an ineffective order
for the purposes of Part 2, as meaning an order made by a
non-judicial officer of a State court of summary jurisdiction in
the purported exercise of the court s federal jurisdiction contrary
to section 39(2)(d) and made before the commencement of the
Part.
Subitem 8(3) provides that if there has been a
purported variation etc to an ineffective order, a reference to
that ineffective order in Part 2 is to be interpreted as a
reference to the content of the order in the form it took from time
to time. The Explanatory Memorandum states that:
This ensures that any variations etc to an
ineffective order are taken into account when determining the
extent of a person s rights and liabilities under item
9.(13)
Item 9 provides that the rights and liabilities
are the same as if the ineffective order had been a valid order of
the court of summary jurisdiction in question. The declaration of
the rights and liabilities is limited to orders that would have
been within the federal jurisdiction of the court in question.
Subitem 10(1) provides that the statutory
rights and liabilities created by item 9 may be exercised and
enforced in the same way as similar rights and liabilities arising
under a valid order of the court of summary jurisdiction in
question. Subitem 10(2) makes it clear that these
rights include the right to appeal.
Subitem 11(1) ensures that acts done, or
omitted to be done, in relation to the rights and liabilities
specified in item 9 have effect for the purposes of any laws in the
same way as orders of the relevant court of summary jurisdiction.
The Explanatory Memorandum notes that this may be relevant when
ascertaining a person s liabilities under other Commonwealth laws,
such as taxation or bankruptcy.
Subject to subitem 11(3), subitem 11(2)
provides that, for the purposes of any laws relating to the
enforcement of orders, acts done or omitted to be done in relation
to the rights and liabilities defined in item 9 give rise to the
same consequences as if each ineffective order were a valid order
of the relevant court. The Explanatory Memorandum states:
Subitem 11(2) is not intended to apply to the
consequences of criminal convictions. It is intended to follow from
the fact that a conviction is not validated or confirmed
(subsection 11(3)) that any order purporting to impose a punishment
in respect of the purported conviction also
fails.(14)
Subitem 11(3) prevents item 11 from operating
to validate or confirm a conviction.
Subitem 11(4) defines the term enforcement
law. An enforcement law is a provision, other than a law
relating to contempt of court, that sets out a consequence for a
person if the person contravenes or acts in a specified way while
there is in force an order made by a court exercising federal
jurisdiction.
Item 12 gives courts the ability to deal with
the statutory rights and liabilities created by item 9 in the same
way that they could deal with similar rights and liabilities
created by a valid order of the relevant court of summary
jurisdiction
Item 13 provides that, where a person has
interfered with a right conferred or affected by item 9 or failed
to satisfy or comply with a liability conferred or affected by item
9, the interference or failure can be dealt with in the same manner
as if it had occurred in relation to a right or liability arising
under a valid order of the relevant court of summary jurisdiction.
The example given in the Explanatory Memorandum is to give the
relevant court the ability to deal with such failures or
interferences as contempt of court.
Item 14 allows the court record of an invalid
order to be used as evidence to show the existence and details of a
person s rights and liabilities created under item 9.
Item 15 ensures that Part 2 does not apply to
any order of a court of summary jurisdiction that was declared
invalid by that court or another court before the Part
commences.
Item 16 provides that jurisdiction is conferred
on the Family Court of Australia and the Federal Magistrates Court
to hear matters arising under this Part. The State courts,
including the Family Court of Western Australia, and the Federal
Court already have jurisdiction by virtue of sections 39 and 39B of
the Judiciary Act. A court only has jurisdiction in relation to
matters arising under this Part if it had jurisdiction in relation
to the matter in which the ineffective order was made.
Endnotes
- Explanatory Memorandum, p. 1.
- Senator Nick Minchin, Debates, Senate, 13 September
2006, p. 1.
- Senator Nick Minchin, op. cit.
- Harris v Caladine (1990) 172 CLR 84 at 94
95.
- Senate Legal and Constitutional Affairs Committee, Report on
inquiry into provisions of the Human Rights Legislation Amendment
Bill 1996 , June 1997.
- Senate Legal and Constitutional Affairs Committee, op.
cit.
- Senator Nick Minchin, op. cit.
- Senator Nick Minchin, ibid.
- Senator Nick Minchin, ibid.
- Explanatory Memorandum, p. 1.
- Explanatory Memorandum, p. 3.
- Explanatory Memorandum, p. 4.
- Explanatory Memorandum, p.4
- Explanatory Memorandum, p. 5.
Sue Harris Rimmer
30 October 2006
Bills Digest Service
Parliamentary Library
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