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Tuesday, 17 March 1987
Page: 918


Mr LIONEL BOWEN (Attorney-General)(5.03) —I move:

(16) Clause 11, page 11, lines 19 to 32, omit subclauses (1) and (2), substitute the following subclauses:

``11. (1) Where it appears to a court that the court will, or will be likely to, in determining a matter for determination in a proceeding, be exercising jurisdiction conferred by this Act or by a law of a State relating to cross-vesting of jurisdiction:

(a) subject to paragraphs (b) and (c), the court shall, in determining that matter, apply the law in force in the State or Territory in which the court is sitting (including choice of law rules);

(b) subject to paragraph (c), if that matter is a right of action arising under a written law of another State or Territory, the court shall, in determining that matter, apply the written and unwritten law of that other State or Territory; and

(c) the rules of evidence and procedure to be applied in dealing with that matter shall be such as the court considers appropriate in the circumstances, being rules that are applied in a superior court in Australia or in an external Territory.

``(2) The reference in paragraph (1) (a) to the State or Territory in which the court is sitting is, in relation to the Federal Court or the Family Court, a reference to the State or Territory in which any matter for determination in the proceeding was first commenced in or transferred to that court.''.

Honourable members will notice that this amendment deals with a number of paragraphs. I am advised as follows: The amendment relates to the conduct of proceedings. The committee of the Law Council of Australia has raised a number of questions on the construction of this clause. There is uncertainty about the relationship between clause 11 (1) (a) and clause 11 (2) concerning the meaning of written law, the uncertainty in rules of evidence, and the procedure to be applied which is to be found in clause 11 (1) (b). All these matters were considered by the State Solicitors-General together with the Commonwealth. So the relationship between clause 11 (1) (a) and clause 11 (2) has been clarified in amendment (16) which has been circulated. The expression `written law' refers to statute law. Clause 11 (1) (b) in the Jurisdiction of Courts (Cross-vesting) Bill, which is now clause 11 (1) (c), reflects a deliberate policy choice of Commonwealth and State Attorneys-General and Solicitors-General. When dealing with different kinds of matters in combined proceedings, courts will need a broad discretion to find workable arrangements for evidence and procedure. This clause assumes that the courts will act sensibly. The clause has been changed to make it plain that the court can apply one set of rules of evidence and procedure for the determination of one matter in a proceeding and another set for the determination of other matters in a proceeding. I am advised that it has not been possible to devise a more satisfactory alternative.