On 23 August 2018, the Senate referred the Federal Circuit and
Family Court of Australia Bill 2018 (FCFC bill) and the Federal Circuit and
Family Court of Australia (Consequential Amendments and Transitional
Provisions) Bill 2018 (Consequential Amendments bill) to the Legal and
Constitutional Affairs Legislation Committee (the committee) for inquiry and
report by 15 April 2018.
On 27 November 2018, the House of Representatives passed the bills with
a number of amendments, which will be outlined below.
Conduct of this inquiry
Details of the inquiry were advertised on the committee's
website, and the committee directly invited a range of organisations to make a
written submission. The committee called for submissions to be received by 23 November 2018.
The committee accepted 115 submissions. Some submissions provided
personal accounts of individual experiences of the family court system, which
were published with the submitters' names withheld. A number of submissions
were also accepted by the committee on a confidential basis. All submissions, as
well as answers to questions on notice, tabled documents, and additional
information are listed at appendix 1 of this report and are available in full on
the committee's website.
The committee held five public hearings, as follows:
- Perth on 10 December 2018;
- Adelaide on 11 December 2018;
- Sydney on 12 December 2018;
- Brisbane on 13 December 2018; and
- Townsville on 14 December 2018.
The witnesses who gave evidence at these hearings are listed at appendix
The committee thanks all submitters and witnesses for their involvement
in this inquiry.
Structure of this report
This report consists of three chapters:
- This chapter provides a brief overview of the bills as well as
the administrative details of the inquiry.
- Chapter 2 outlines the need to reform the federal courts and sets
out past reviews which have informed the bills' formation.
Chapter 3 discusses the key issues raised in evidence to the
inquiry, and provides the committee's views and recommendations.
Purpose of the bills
The FCFC bill and
the Consequential Amendments bill were introduced into the House of Representatives
by the Minister for Revenue and Financial Services, Minister for Women and Minister
Assisting the Prime Minister for the Public Service, the Hon. Kelly O'Dwyer MP,
on 23 August 2018. The Minister stated that the bills' reforms would ensure that family law disputes
are 'resolved as quickly, inexpensively and efficiently as possible in the best
interests of Australian families, especially children'.
The Minister explained that there had been a number of reviews of the
family law system which had recommended urgent change. She particularly noted
the review by PricewaterhouseCoopers Australia (PwC), 'Review of efficiency of
the operation of the federal courts', and stated that it highlighted that 'the
current court structures and overlapping family law jurisdiction is causing confusion,
delays, and significant differences in access to justice for Australian
The FCFC bill would establish the Federal Circuit and Family Court of
Australia (FCFC), which would comprise of two divisions. The FCFC (Division 1)
would be a continuation of the Family Court, while the FCFC (Division 2), would
be a continuation of the Federal Circuit Court. The Explanatory Memorandum to
the FCFC bill outlines the rationale for this change:
- to create a consistent pathway for
Australian families in having their family law disputes dealt with in the federal
- to improve the efficiency of the
federal court system, and
- to ensure outcomes for Australian
families are resolved in the most timely, informed and cost effective manner
The Explanatory Memorandum to the FCFC bill explains how the intentions
of the bill would be achieved:
The FCFC would provide, in effect, the single point of entry
into the family law jurisdiction of the federal court system. To achieve
optimal efficiency in the handling of matters, the Bill would provide for matters
to be transferred between FCFC (Division 1) and FCFC (Division 2) with the
approval of the Chief Justice/Chief Judge of the receiving Division. With
consistent internal approaches to case management, practices and procedures, it
is anticipated that the FCFC would significantly improve efficiency in the
family law jurisdiction of the federal court system, providing additional
resources that can be directed to reducing the growing backlog of pending cases
in the system and reducing the average time it takes to resolve family law
The Consequential Amendments bill would make 'consequential amendments
and provides transitional provisions necessary to support the [FCFC bill].'
On 27 November 2018, the bills were passed by the House of
Representatives with a number of amendments. In broad terms, these amendments
- The commencement date of the provisions, from 1 January 2019 to
...by Proclamation or if the provisions do not commence within
the period of six months beginning on the day the Act receives Royal Assent,
they commence on the day after the end of that period.
- Clarifying whether certain court fees apply to particular
The current family court system
Neither the Commonwealth nor the states and territories have exclusive
jurisdiction over family law matters. The Australian Constitution gives the
Commonwealth the power to make laws with respect to 'marriage' and 'divorce and
matrimonial cases; and in relation thereto, parental rights and the custody and
guardianship of infants'. Additionally, states (with the exception of Western Australia) have referred
their state powers to the Commonwealth. This has had the effect of the federal
parliament having jurisdiction over marriage, divorce, parenting and family
property upon separation, while the state and territory governments have
retained jurisdiction over adoption, child welfare and same-sex couples.
Currently, two federal courts deal with matters under the Family Law Act 1975 (Family Law Act)—the Family Court of Australia (Family Court) and the
Federal Circuit Court of Australia (Federal Circuit Court). Additionally,
Western Australia has established a state family court—the Family Court of
Western Australia (FCWA)—which exercises both federal and state jurisdiction.
Family Court of Australia
The Family Court was established in 1976 as a specialist court. It
commenced operations on 5 January 1976 with the passage of the Family Law
Act. The Family Court comprises of a Chief Justice, Deputy Chief Justice,
Appeals Division judges and other judges. The Family Court's 2017–18 Annual
Report lists 38 judicial appointments to the Court (including the Chief Justice
and Deputy Chief Justice), including the five judicial appointments to the FCWA. Between 2006
and 2018, the number of judicial appointments has fluctuated between 35 and 40
The Family Court maintains registries in all states and territories
except Western Australia (see below). Judges and Registrars are located in the
following registries: Adelaide, Brisbane, Canberra, Hobart, Melbourne,
Newcastle, Parramatta, Sydney and Townsville.
On 10 December 2018, Chief Justice William Alstergren was appointed
Chief Justice of the Family Court. Chief Justice Alstergren was appointed
Chief Judge of the Federal Circuit Court in October 2017. Therefore, from 10
December 2018, he will hold both positions simultaneously. The Chief Justice is
responsible for 'ensuring the effective, orderly and expeditious discharge of
the business of the Court (s 21B, Family Law Act) and for managing its
administrative affairs (s 38A)'.
The Family Court's stated objective is:
[To] determine the
most complex family law disputes including in specialised areas of family law
through effective judicial and non-judicial processes, while respecting the needs
of separating families.
The Family Court deals with complex matters in relation to:
Parenting cases, including those that involve a child welfare agency
and/or allegations of sexual abuse or serious physical abuse of a child
(Magellan cases), family violence and/or mental health issues with other
complexities, multiple parties, complex cases where orders sought having the
effect of preventing a parent from communicating with or spending time with a
child, multiple expert witnesses, complex questions of law and/or special
jurisdictional issues, international child abduction under the Hague
Convention, special medical procedures and international relocation, and
Financial cases, including those that involve multiple parties,
valuation of complex interests in trusts or corporate structures, including
minority interests, multiple expert witnesses, complex questions of law and/or
jurisdictional issues (including accrued jurisdiction) or complex issues
concerning superannuation such as complex valuations of defined benefit
The Family Court also has original jurisdiction under certain
Commonwealth Acts, including the Marriage Act 1961 (Marriage Act), the Child
Support (Registration and Collection) Act 1988, the Child Support
(Assessment) Act 1989 and the Bankruptcy Act 1966.
Appeal Division of the Family Court
The Family Court has an Appeal Division, which deals with appeals from
decisions of both federal and state courts. Appeals of a decision of the Family Court are heard by a bench of the Full
Court of the Family Court, which is made up of three or more judges of the
Court, the majority of whom must be members of the Appeal Division. As of 30 June
2018, there were 11 judges assigned to the Appeal Division of the Family Court.
Similarly, appeals from the Federal Circuit Court and the FCWA,
exercising jurisdiction under the Family Law Act, are heard by a Full Court of
the Family Court, unless the Chief Justice considers it appropriate for a
single judge of the Family Court to exercise jurisdiction.
Federal Circuit Court of Australia
Formally known as the Federal Magistrates Court of Australia, the Federal Circuit Court
was established in 1999 by the passage of the Federal Magistrates Act
1999. It commenced operations on 23 June 2000 and was initially established
to address a backlog of matters in the Federal Court of Australia and the
Family Court, as well as to assist in dealing with simpler matters in an
The Federal Circuit Court comprises two divisions—a Fair Work division,
and a general division for other matters including family law. When it was
first established, it shared its general federal law jurisdiction with the
Federal Court in respect of consumer protection under the Trade Practices Act 1974,
bankruptcy, judicial review of administrative decisions, appeals from the
Administrative Appeals Tribunal (AAT) and unlawful discrimination. With respect
to its family law jurisdiction, the Federal Circuit Court initially only
considered property disputes with a maximum value of $300,000 and parenting
orders regarding residence with the consent of the parties.
The jurisdiction of the Federal Circuit Court has significantly
increased over time, in respect of both general federal law and family law. The Federal
Circuit Court explains that it 'now exercises an almost identical concurrent
jurisdiction with the [Family Court] with the exception of adoption, nullity
and validity of marriage'. It's jurisdiction in relation to family law includes:
- applications for divorce
- applications concerning spousal
and de facto maintenance
- property disputes
- all parenting orders including
those providing for where a child lives, who a child spends time and
communicates with, maintenance or specific issues
- enforcement of orders made by
either the Federal Circuit Court or the Family Court
location and recovery orders as
well as warrants for the apprehension or detention of a child, and
- determination of parentage and
recovery of child bearing expenses.
According to the Federal Circuit Court's website, approximately 90 per
cent of the court's work is in relation to family law, and the court dealt with
almost 80 per cent of family law matters filed in all of the federal
courts, excluding family law matters in Western Australia.
In 2017–18, the Federal Circuit Court had 69 judges appointed, a
substantial increase from 49 federal magistrates in 2006–07. The Federal Circuit Court
has 30 locations across Australia.
Family Court of Western Australia
The Family Law Act allows federal family law jurisdiction to be vested
in State family courts, by agreement between a state government and the
Australian Government. As noted above, Western Australia is the only state to have entered into such
an agreement. As such, the FCWA, established in 1976, is the only state family
court in Australia. Its jurisdiction covers federal legislation (for example, the
Family Law Act) in addition to state legislation (for example, the Family Court Act 1997 (WA)). The judges of the FCWA hold equivalent federal commissions, and
therefore if the FCFC bill passes, these judges would be appointed to Division
1 of the FCFC.
Unlike other states, the Western Australian Parliament has not referred
its power to the Commonwealth in relation to parenting disputes concerning
ex-nuptial children or issues relating to the division of property of parties
to a de facto relationship (subject to the exception of superannuation of de
facto partners in Western Australia). These proceedings are instituted in the FCWA pursuant to state legislation,
which mirrors federal law.
Consequently, the appeals pathway differs depending on whether the
matter was heard in a state or federal jurisdiction:
- Federal jurisdiction—appeals are determined by the Full Court of
the Family Court.
- State jurisdiction—appeals are determined by the Full Court of
the Court of Appeal of the Supreme Court of Western Australia (subject to one
exception relating to interim/interlocutory decisions of Family Law Magistrates,
where the appeals are determined by a single judge of the FCWA).
The Hon. Chief Justice Stephen Thackray, Chief Judge of the FCWA,
elaborated on the Family Court system in Western Australia:
already have the unified family law system in WA, because all family law cases
in Western Australia are filed in Perth in the Family Court of Western
Australia. We then divide up the work between our five judges and 10 specialist
family law magistrates, depending upon the complexity of the matter. Although
our family law magistrates are appointed formally as magistrates of our [Western
Australian (WA)] state Magistrates Court, the law provides that they are in
fact subject to the direction of the person who holds my office. So the Chief
Judge of the Family Court of Western Australia directs the work of the family
law magistrates. So although as a matter of law they are two courts, in reality
they are one.
Our court has the great advantage of
being able to exercise both state and federal jurisdiction, so we are able to
deal with the whole range of family law matters, whether they are federal or
state. So we deal with standard parenting-property settlement matters for both
married couples and de facto couples. We deal with adoptions. We deal with
surrogacy matters. We occasionally make restraining orders. Most importantly,
we can deal with the care and protection jurisdiction, which in other states is
generally exclusively dealt with by a Children's Court.
WA we are unique in that we have only one file in each matter, we have one set
of rules, the forms are all the same, there's a single point of entry, and
cases move seamlessly between the magistrates and the judges throughout the
course of a matter, depending upon the complexity and convenience. Although not
strictly relevant, I'm very pleased to say that, as at today, in this court
there is no judgement of any judge or magistrate that is outstanding for longer
than the prescribed period.
Key provisions of the FCFC bill
The FCFC bill largely replicates the provisions contained in the
Family Law Act, with some exceptions designed to ensure simplicity
and efficiency. Only key components of the bills that substantially differ to
the current operation or practice of the Family Court or Federal Circuit Court
will be outlined below.
One court comprising of two
As stated above, the FCFC bill proposes to establish the FCFC, which
would comprise of two Divisions—Division 1 would be a continuation of the
Family Court, while Division 2 would be a continuation of the Federal Circuit Court.
As noted in the Explanatory Memorandum, the aim of the bill is to provide a 'single
point of entry into the family law jurisdiction of the federal court system'.
The objects of the bills are:
- to ensure that justice is delivered by federal courts
effectively and efficiently; and
- to provide for just outcomes, in particular, in family
law or child support proceedings; and
- to provide a framework to facilitate cooperation between
the Federal Circuit and Family Court of Australia (Division 1) and the Federal
Circuit and Family Court of Australia (Division 2) with the aim of ensuring:
- common rules of court and forms; and
- common practices and procedures; and
- common approaches to case management.
Division 1 would be considered a superior court of record and a court of
law and equity, and Division 2 would be a court of record and a court of law
The original jurisdiction of Division 1 of the FCFC aligns with the
jurisdiction of the Family Court (proposed clause 24), as does the original
jurisdiction of Division 2 align with the jurisdiction of Federal Circuit
Court (proposed clause 100). Additionally, the FCFC bill provides for both Divisions
to hear appeals from State and Territory courts of summary jurisdiction, in
relation to federal family law or child support matters (proposed clauses 25
and 102 of the FCFC bill and Schedule 1, item 72 of the Consequential
Amendments bill). The Attorney-General's Department (the Department) explains
the rationale for these provisions:
Providing both Divisions of the FCFC with the same
jurisdiction for family law and child support matters means that common
approaches to case management for those matters can be more easily implemented
consistently across the FCFC...
The Consequential Amendments bill would make changes to the appellant
jurisdiction of the Family Court and Federal Circuit Court, which will be
Transfer of proceedings
The FCFC bill would allow for the transfer of matters between the two
Divisions, either on initiative of the Division in which the proceeding
initiated, or on the application of a party to the proceeding (proposed clauses
34 and 117). The transfer of proceeding from Division 1 to Division 2, would
require the approval of a Chief Judge (proposed subclause 34(5)), while the
transfer of proceedings from Division 2 to Division 1, would require the
approval of the Chief Justice (proposed subclause 117(5)). The Department
explained that the approval of the receiving Chief Justice or Chief Judge, is
to 'ensure that only matters that need to be transferred will be so transferred'.
In contrast, the transfer of non-family law proceedings in Division 2 to
the Federal Court would take effect on the date the order is 'confirmed' by the
Federal Court (proposed clause 120).
One Chief Executive Officer
The administrative affairs of Division 1 and Division 2 of the FCFC will
managed by a single Chief Executive Officer, pursuant to clauses 62 and 216 of
the FCFC bill.
Appointment of Judges
The FCFC bill provides for the appointment of a Chief Justice, a Deputy
Chief Justice, senior judges and other judges to Division 1; and a Chief Judge,
Deputy Chief Judge, senior judges and other judges to Division 2.
Proposed subsection 20(1) allows for a Chief Justice of Division 1 to
hold a dual appointment as the Chief Judge of Division 2. Similarly, proposed
subsection 20(2) allows for a Chief Deputy Justice of Division 1 to hold a dual
appointment as the Deputy Chief Judge of Division 2. Moreover, the Explanatory
Memorandum states that it is the intention of Government:
...that the FCFC would operate under the leadership of one
Chief Justice, supported by one Deputy Chief Justice, with each holding a dual
commission to both Division 1 and Division 2.
A common approach
The FCFC bill seeks to ensure efficiency through a common set of rules,
practices and procedures, as well as a common approach to case management, with
respect to the two Divisions of the FCFC. For example, clause 51 of the FCFC bill
provides that the Chief Justice of Division 1, to work cooperatively with the
Chief Judge of Division 2 and that:
For the purposes of ensuring the efficient resolution of
family law or child support proceedings, the Chief Justice must work cooperatively
with the Chief Judge with the aim of ensuring common approaches to case
Clause 55 similarly provides that the Chief Justice work cooperatively
with the Chief Judge with the aim of ensuring common rules of court and forms,
and common practices and procedures. The Explanatory Memorandum states that
this is 'intended to strengthen the goal of ensuring the efficient resolution
of family law and child support proceedings'.
Proposed clauses 56 and 184 of the FCFC bill provide the Chief
Justice of Division 1 and the Chief Judge of Division 2 with the power to make
rules. As outlined above, currently, the Chief Justice of the Family Court and
the Chief Judge of the Federal Circuit Court, is the same individual—Chief Justice
and Chief Judge Alstergren—who holds a dual appointment. Consequently, the
rule-making powers of Divisions 1 and 2 of the FCFC would be vested in the one
Parties to comply with overarching
Clause 49 of the FCFC bill would require parties to act consistently
with the overarching purpose of the Act and would require a party's lawyer to
assist the party to comply with their duty to act consistently with the
Subclause 49(3) of the FCFC bill would allow a Judge of the FCFC
(Division 1), to require a lawyer to give a party an estimate of the
likely duration of the proceedings and the likely costs the party will have to
pay in connection with the proceedings. The Explanatory Memorandum notes that
this may assist the party 'to prioritise the issues in dispute, or to
re-consider the resources they wish to allocate to the litigation'.
Subclause 49(4) of the bill would require a Judge to take into account,
when awarding costs, any failure of a party to act consistently with the
overarching purpose. Additionally, subclauses 49(5) and 49(6) would provide a
Judge of the FCFC (Division1) the discretion to order that a party's lawyer
bears the costs personally. Where such as order is made because of the failure
to comply with the duty imposed by subclause 49(2), the lawyer is prevented
from recovering the costs from the lawyer's client. The rationale is explained in the Explanatory Memorandum:
The intention of clause 49 is to support a cultural change in
the conduct of litigation so that the Court and the parties are focussed on
resolving disputes as quickly and cheaply as possible. Parties who act
consistently with this duty will be able to avoid cost orders being made
against them and, overall, their litigation costs should be reduced.
Clause 158 of the FCFC bill contains identical provisions with respect
to the FCFC (Division 2).
Key provisions of the Consequential Amendments bill
The Consequential Amendments bill would make 'consequential amendments
and provides transitional provisions necessary to support the [FCFC bill]'. The substantive change relates to the establishment of a new appellate
jurisdiction, as discussed below.
New appellate jurisdiction
Of particular significance, the Consequential Amendments bill would
establish a new Division within the Federal Court of Australia (Federal
Court)—the Family Law Appeal Division.
Currently, appeals from the Family Court are heard in the Full Court of
the Family Court. Pursuant to items 227 and 228 of the Consequential Amendments
bill, the appellate jurisdiction of the Family Court would largely be removed.
In its place, a new division of the Federal Court would be established—the
Family Law Appeal Division.
Appeals from Division 1 of the FCFC would be heard by a Full Court of
the Family Law Appeal Division of the Federal Court. While appeals from Division 2 of the FCFC would be heard by a single judge of
the Family Law Appeal Division of the Federal Court, unless a judge considers
it appropriate for the appeal to be heard by a Full Court.
The Explanatory Memorandum outlines the rationale for this proposed
The conferral of appellate jurisdiction for family law and
child support matters is central to the structural reform of the courts. By investing
the Federal Court with appellate jurisdiction, and removing most of the appellate
jurisdiction of the Family Court, judicial resources of the FCFC (Division 1) will
be able to be redirected to hear more first instance family law matters. It is
appropriate for appellate jurisdiction to be conferred on the Federal Court as
it is a superior court with experienced Judges. Further, the inclusion of the
list provisions and a specialised Division – the Family Law Appeal Division –
will allow Judges with more experience in dealing with family law matters to be
allocated specific family law appeal matters.
The effect of the Consequential Amendments bill in Western Australia is
that appeals from a Western Australian Family Law Magistrate would be heard by
a single judge of the FCWA, rather than by a bench of three judges of the Full
Court of the Family Court, as is currently the case.
Schedules 6 and 9 of the Consequential Amendments bill would make
amendments to the Rules of Court 'to ensure that the FCFC and the Family Law Division
of the Federal Court are able to operate appropriately'. The Department explains how the rules will transition:
Initially, upon commencement of the reforms, the Federal
Court and the two Divisions of the FCFC would largely maintain their existing
Rules of Court. ... Over the course of 2019, the Federal Court and the FCFC would
undertake a comprehensive review of their respective Rules of Court, to
consolidate and update those rules with a view to greater harmonisation of
Summary of schedules
The table below provides a brief overview of the schedules contained in
the Consequential Amendments bill:
Table 1: Overview of Schedules in the Consequential
1 makes significant amendments to the Family Law Act 1975 to remove
provisions relating to the establishment and operation of the
Court. These provisions have been replicated with necessary
in the FCFC bill. It also amends that Act to provide for the relevant changes
to definitions, jurisdiction and to accommodate the changes to appeal
pathways arising from the establishment of the Family Law Appeal Division of
the Federal Court.
1 further makes significant amendments to the Federal Court of Australia Act
1976 to provide for the establishment of the Family Law Appeal Division of
the Federal Court. It also imposes a new qualification for judges appointed
to the Federal Court.
2 amends other Commonwealth legislation, as necessary, to reflect the
continuation of the Family Court as the FCFC (Division 1) and the Federal
Circuit Court as the FCFC (Division 2) respectively, and to accommodate the
changes to family law appeal arrangements with the establishment of the
Family Law Appeal Division of the Federal Court.
3 amends delegated Commonwealth legislation, as necessary, to reflect the
continuation of the Family Court as the FCFC (Division 1) and the Federal
Circuit Court as the FCFC (Division 2), respectively. It also provides for
harmonisation of family law court fees across the FCFC (Division 1) and FCFC
(Division 2), and accommodates the changes to appeal arrangements with the
establishment of the Family Law Appeal Division of the Federal Court.
4 provides for the repeal of the Federal Circuit Court of Australia Act 1999
and related savings and transitional arrangements. The provisions of the
Federal Circuit Court Act are replicated with necessary changes in the FCFC bill.
5 provides for consequential amendments to legislation potentially affected
by other bills before the Parliament at the time of the introduction of the
FCFC bills. The commencement of these amendments is contingent on the passage
of the relevant amending legislation.
6 amends the Federal Court Rules for the purpose of ensuring
are appropriate in application to the Family Law Appeal Division of the
Federal Court and to reflect changes to arrangements for transfers between the
Federal Court and FCFC. The Federal Court Rules provide for the practice and
procedure to be followed in the Federal Court and in Registries of the Court.
They may extend to all matters incidental to any practice or procedure
necessary or convenient to be prescribed for the conduct of any business of
7 modifies the standard Rules of Court (the Family Law Rules 2004), made
under the Family Law Act 1975 as in force immediately before 1 January 2019,
for application to the FCFC (Division 1) on and from 1 January 2019. These
modified rules will be known as the Federal Circuit and Family Court of
Australia (Division 1) Rules 2018, and would be taken to be Rules of Court
covered by Chapter 3 of the Federal Circuit and Family Court of Australia Act
8 modifies the Rules of Court, made under the Federal Circuit
of Australia Act 1999 as in force immediately before 1 January 2019, for
application to the FCFC (Division 2) on and from 1 January 2019. These
modified rules will be known as the Federal Circuit and Family Court of
Australia (Division 2) Rules 2018, and would be taken to be Rules of Court
covered by Chapter 4 of the Federal Circuit and Family Court of Australia Act
9 amends the standard Rules of Court (the Family Law Rules
made under the Family Law Act 1975 for application to other courts exercising
jurisdiction under that Act. The amendments take account of changes in the
structure of the federal family law courts and their enabling legislation.
10 provides transitional arrangements to preserve and transition the offices,
appointments, and roles of those in the Family Court and the Federal Circuit
Court (including Judges, office holders, and other personnel of the two
courts) to the FCFC Divisions 1 and 2 respectively. Schedule 10 also provides
transitional arrangements for appeals on foot in the Family Court prior to 1
January 2019 or appeals eligible to be filed as at that time, as a result of
the creation of the Family Law Appeal Division of the Federal Court.
Scrutiny of Bills Committee
The Senate's Standing Committee for the Scrutiny of Bills (Scrutiny
Committee) raised two issues relating to the FCFC bill which both relate to the
broad delegation of administrative powers, as discussed below.
Clause 32 of the FCFC bill outlines the process the Chief Justice may
follow if a complaint is made about another Judge of the FCFC (Division 1). Subclause
32(2) provides that the Chief Justice may authorise, in writing, 'a person or a
body' to assist the Chief Justice in the handling of the complaint. Clause 113
mirrors clause 32 and applies with respect to complaint handling processes that
a Chief Judge may follow where a complaint is made about a Judge of the FCFC
The Scrutiny Committee raised concerns that subclauses 32(2) and 113(2) delegates
administrative powers 'to a relatively large class of persons, with little or
no specificity as to their qualifications or attributes'. The Explanatory Memorandum to the FCFC bill explains that the subclauses would
give the Chief Justice 'a high degree of flexibility to deal with complaints as
appropriate, including through managing complaints on a case by case basis'.
The Scrutiny Committee noted that the Explanatory Memorandum does not
contain information about the range of persons or bodies that is envisaged the
Chief Justice or Chief Judge might authorise to handle complaints.
While the Explanatory Memorandum recognised 'flexibility' as the reason
why the subclauses provides broad delegation of administrative powers with no
specificity as to the qualifications or attributes delegates must possess, the
Scrutiny Committee did not consider this to be a sufficient justification.
In response to the concerns raised by the Scrutiny Committee, the
Attorney‑General, the Hon. Christian Porter MP, provided the following
advice in relation to the intended operation of the subclauses:
...I anticipate that the persons authorised to handle
complaints would continue to be limited to the Deputy Principal Registrars and
the Deputy Chief Justice of the FCFC (Division 1), and would also likely
include the Deputy Chief Judge of the FCFC (Division 2). However, and as
outlined in the Explanatory Memorandum to the main Bill, having a broad
delegation power will allow flexibility in the complaint handling process,
which may involve a wide variety of circumstances.
The Scrutiny Committee concluded by reiterating its concerns with the
subclauses and drawing its concerns to the attention of the senators; noted
that it would be appropriate for the FCFC bill to be amended to require the
Chief Justice and Chief Judge to be satisfied that person's authorised to
handle complaints possess appropriate expertise; and requested that the
Explanatory Memorandum be updated to include the advice provided by the
Attorney-General. The committee notes that the revised Explanatory Memorandum contains this
Assisting the Sheriff, Deputy
Sheriff, Marshall or Deputy Marshall
Clauses 72, 234 and 235 of the FCFC bill would allow the Sheriff, Deputy
Sheriff, Marshall, or Deputy Marshall to authorise persons to assist them in
exercising powers or performing functions in Divisions 1 and 2 of the FCFC.
Similarly, proposed sections 18PB and 18PE of Schedule 1 of the Consequential
Amendments bill allows the Sheriff, Deputy Sheriff, Marshall or Deputy Marshall
to authorise persons to assist them in exercising powers or performing
functions in the Federal Court of Australia. Apart from noting that these
provisions are substantially similar to the current provisions contained in the Federal Court of Australia Act 1976, the Explanatory Memorandum provides
no further rationale for these powers.
The Scrutiny Committee raised the same concerns, related to the broad
delegation of administrative powers without any legislative guidance as to who
may be authorised to assist.
In response to these concerns, the Attorney-General stated:
Those persons currently authorised to provide such assistance
within the Family Court, the Federal Circuit Court and the Federal Court are
State and Territory Sheriff's officers. These officers execute the Courts'
orders in relation to civil enforcement matters. As such, they execute civil
enforcement warrants to seize and sell property or take vacant possession of
property in strict accordance with the order issued by the respective Court.
State and Territory Sheriff's officers perform the same duties in relation to
enforcement orders issued by State and Territory Courts, are trained in
accordance with State and Territory requirements and are generally uniformed
and carry photo identity cards. Where violence is anticipated, authorised
officers seek assistance of local police and do not arrest people in connection
with this type of process.
It is essential that there is provision for such
authorisation. State and Territory Sheriff's officers assist the federal
courts, which do not have personnel with the necessary training and powers to
undertake such duties. In the FCFC and the Federal Court, the persons
authorised under the provisions would continue to be limited to State and
Territory Sheriff's officers.
The Scrutiny Committee reiterated its concerns that while it may be
necessary to authorise State and Territory Sheriff's officers to assist
officers of the federal court, it remains unclear why it is necessary or
appropriate to authorise 'any person' to provide assistance. Furthermore, the Scrutiny Committee noted that while it may be intended that
the authorisation be made to State and Territory Sheriff's officers, the bill
does not appear to restrict the authorisation to such persons or to require
that the person authorised to assist officers of the federal court possess
appropriate expertise. The Scrutiny Committee commented that is of particular concern given 'that
persons authorised to assist officers of the federal courts may participate in
the exercise of relatively significant coercive powers, including powers of
arrest, search and entry'.
The Scrutiny Committee outlined that it considered it appropriate for
the bills to be amended to require the Sheriff, Deputy Sheriff, Marshall, or
Deputy Marshall of the FCFC and the Federal Court 'to be satisfied that persons
authorised to assist those officers in the performance of their functions
possess appropriate expertise'. The Scrutiny Committee also requested that key information provided by the
Attorney‑General be included in the Explanatory Memorandum and otherwise
drew its scrutiny concerns to the attention of senators.
Parliamentary Joint Committee on
The Parliamentary Joint Committee on Human Rights stated that the bills
do not raise human rights concerns.
The Explanatory Memorandum states that $4 million was allocated in the
2018–19 Budget to assist with the implementation of the structural reform of
the federal courts. Additionally the Explanatory Memorandum noted that:
Locating the Federal Circuit Court and the Family Court in
the FCFC is expected to deliver efficiencies to the courts of $3.0 million over
the forward estimates. These efficiencies will be reinvested in the courts to
further enhance their capacity to provide services.
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