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Wednesday, 3 December 2008
Page: 12296


Mr McCLELLAND (Attorney-General) (9:36 AM) —I move:

That this bill be now read a second time.

This bill contains a range of measures to improve the efficient operation of the federal courts.

Court efficiency is important if we are to ensure that the cost of justice remains proportionate to the relief being sought. In troubled economic times, it is also important that commercial disputes be resolved as expeditiously and economically as possible.

An important measure introduced by this bill is a power to refer all or part of a proceeding in the Federal Court to a referee for report. Such a power is regularly used by courts in other jurisdictions to assist them to determine issues that are before them. It will allow the Federal Court to appoint an appropriately qualified person to inquire into any aspect of a proceeding and provide a report to the court.

This is an important reform and will enable the court to more effectively and efficiently manage large litigation.

It will be particularly useful in many cases, such as those involving complex technical issues or where detailed examination of financial records is necessary to assess damages. It will also be of assistance in native title matters where a judge could be assisted by an inquiry into a particular aspect of the claim.

The procedural flexibility with which a referee can deal with a question—along with their technical expertise—will allow a referee to more quickly get to the core of technical issues and reduce the cost and length of trials for litigants.

The bill also amends the Federal Court Act to allow a single judge of the court to make interlocutory orders in proceedings that would otherwise be required to be heard by the full court. This will allow the court to more efficiently manage cases and avoid unnecessary delay for litigants and also unnecessary use of resources by the court at that interlocutory stage.

In addition, the bill amends the International Arbitration Act 1974 to give the Federal Court of Australia concurrent jurisdiction with state and territory supreme courts for matters arising under parts III and IV of that act. These parts adopt the UNCITRAL Model Law on International Commercial Arbitration 1985 and implement the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States 1965.

The amendments also clarify the Federal Court’s existing jurisdiction for matters arising under part II of the act which gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.

These amendments will assist in ensuring that the Federal Court is well equipped to operate as a regional hub for commercial litigation.

The bill promotes the efficient administration and management of federal courts and tribunals by repealing existing legislative provisions that restrict the heads of the Federal Court, Family Court, Administrative Appeals Tribunal and Native Title Tribunal from acquiring interests in land for the purposes of the Lands Acquisition Act 1989.

These restrictions have impeded the efficient administration of these bodies by preventing them from negotiating and executing leases on their own behalf.

The existing restrictions were introduced in 1989 at a time when purchasing and building arrangements for federal courts and tribunals were the responsibility of the then Department of the Arts and Administrative Services. That department no longer exists. The courts are now self-administering, and it is consistent with this status that they be able to negotiate and execute their own leases. My approval is required for major purchases over $1 million.

The bill also amends part IIA of the Public Order (Protection of Persons and Property) Act 1971 which empowers authorised officers to exercise certain powers in relation to court premises if they believe this is necessary in the interests of court security.

These powers include the power to remove a person from court premises or to require information from a person or indeed to search a person if deemed necessary for the protection of persons and property.

These amendments make it clear that authorised officers have these same powers where the Federal Court is sitting on open land, as occurs in some native title cases, or in a building other than its usual premises, which happened recently with the Federal Court in Australia during the process of renovations.

The amendment gives court officers the power to make an order designating a particular area as ‘court premises’. The bill ensures that appropriate notification is given to the public when such an order is made. These amendments will ensure it is clear to both court officers and the public the areas in which officers can exercise powers in the interests of court security.

Importantly, the bill responds to the decision of the full court of the Family Court of Australia in the matter of Black and Black.

In that case, the court found that a binding financial agreement (commonly known as a pre-nuptial agreement) made under the Family Law Act 1975 was invalid because it did not strictly comply with certain technical requirements set out in the Family Law Act.

The amendments are being made because the government is concerned about the possible consequences of that decision on the validity of existing binding financial agreements which may contain technical errors.

The bill amends the Family Law Act to ensure that people who have made an informed decision to enter into one of these agreements cannot later avoid or get out of the agreement on a mere technicality, resulting in court battles that the agreement was designed to prevent. These amendments will restore confidence and certainty in the binding nature and enforceability of financial and termination agreements under the Family Law Act.

I commend this bill.

Debate (on motion by Mr Wood) adjourned.