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Federal Courts Legislation Amendment Bill 2014

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2013-2014

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

Federal courts legislation amendment bill 2014

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)

                                                                                                                                  



 

federal courts legislation amendment Bill 2014

general Outline

This Bill will make minor, technical and uncontroversial amendments to the Federal Court of Australia Act 1976 and the Federal Circuit Court of Australia Act 1999 to improve the operation and clarity of these Acts. 

The Bill will also amend the Federal Circuit Court of Australia Act to:

·       confer jurisdiction on the Federal Circuit Court of Australia in relation to tenancy disputes where:

o   the lessor (other than as a sublessor), licensor (other than as a sublicensor) or the grantor of a right to possess, occupy or use land owned by the Commonwealth, is the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, and

o   the lessee (other than as a sublessee), licensee (other than as a sublicensee) or grantee is a person other than the Commonwealth, a person suing or being sued on behalf of the Commonwealth, or a Commonwealth officer or employee

·       enable additional jurisdiction in relation to tenancy disputes to which the Commonwealth is a party to be conferred on the Federal Circuit Court of Australia by delegated legislation, and

·       enable delegated legislation to be made to modify the applicable state and territory law where appropriate, and to clarify the jurisdiction and the enforcement of an exercise of that jurisdiction.     

FINANCIAL IMPACT

The Bill is expected to generate an approximate saving of $0.2 million by introducing efficiencies and reducing costs to tenants involved in Commonwealth tenancy disputes.

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Federal Courts Legislation Amendment Bill 2014

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The Bill will amend the Federal Court of Australia Act 1976 to provide an arrester the power to use reasonable force to enter premises in order to execute an arrest warrant. Under existing provisions in the Federal Court of Australia Act, the Federal Court of Australia may issue an arrest warrant where a person who is the subject of proceedings for contempt of court or for a summary offence has failed to attend the Court. As the legislation currently stands, there is uncertainty about whether reasonable force can be used to enter premises to execute an arrest warrant. This means that circumstances can arise where an arrest warrant is unable to be executed because an arrestee is inside premises. This can delay court processes and burden the justice system.
By providing the arrester with the power to use reasonable force to enter premises to execute an arrest warrant, the amendments will advance the efficient administration of justice by allowing an arrestee to be brought promptly in front of the Court. Importantly, the amendments will contain safeguards so that the arrestee is treated fairly during arrest and detainment and is not subjected to arbitrary arrest or detention, or arbitrary interference with their privacy.

The Bill will also amend the Federal Circuit Court of Australia Act to:

·       confer jurisdiction on the Federal Circuit Court of Australia in relation to tenancy disputes where:

o   the lessor (other than as a sublessor), licensor (other than as a sublicensor) or the grantor of a right to possess, occupy or use land owned by the Commonwealth, is the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, and

o   the lessee (other than as a sublessee), licensee (other than as a sublicensee) or grantee is a person other than the Commonwealth, a person suing or being sued on behalf of the Commonwealth, or a Commonwealth officer or employee

·       enable additional jurisdiction in relation to tenancy disputes to which the Commonwealth is a party to be conferred on the Federal Circuit Court of Australia by delegated legislation, and

·       enable delegated legislation to be made to modify the applicable state and territory law where appropriate, and to clarify the jurisdiction and the enforcement of an exercise of that jurisdiction. This will be done by enabling the Minister to flexibly respond to particular issues in relation to particular state or territory regimes which might arise in the context of conferral of jurisdiction on a federal court, such as:

o   omitting or modifying provisions to ensure the vested jurisdiction is suitable for a court, and

o   ensuring that there are clear and valid enforcement mechanisms available.

This provision will advance the right to a fair hearing by providing an appropriate forum to hear Commonwealth tenancy disputes in the absence of an appropriate forum at present.

The Bill will also amend the Federal Court of Australia Act to clarify the limitation on the right to appeal minor procedural decisions such as decisions to change, or not to change, a hearing date. Such minor procedural decisions are interlocutory in nature, from which appeals are vexatious and can cause delays to the resolution of the court proceeding. These delays affect the availability of court resources and impact on the rights of other court users to a fair trial.

The Bill will also make minor, technical and uncontroversial amendments to the Federal Court of Australia Act 1976 and the Federal Circuit Court of Australia Act 1999 to improve the operation and clarity of these Acts. These amendments have no human rights implications.  

Human rights implications

The Bill engages the following human rights:

·            the right to a fair hearing - article 14 of the International Covenant on Civil and Political Rights (ICCPR)

·            the right to freedom from arbitrary arrest or detention - article 9 of the ICCPR, and

·            the right to privacy - article 17 of the ICCPR.

The right to a fair hearing

Federal Court of Australia Act 1976
Items 2 to 7 of Schedule 1 of the Bill will amend the Federal Court of Australia Act to clarify the limitation on the right to appeal minor procedural decisions such as decisions to change, or not to change, a hearing date. Such minor procedural decisions are interlocutory in nature, from which appeals are vexatious and can cause delays to the resolution of the court proceeding. These delays affect the availability of court resources and impact on the rights of other court users to a fair trial.
The limitation on a person’s right to a fair hearing through the removal of the right to appeal these types of matters is reasonable, necessary and proportionate to achieve the legitimate objective of ensuring the efficient administration of justice. Moreover, this amendment will promote the right to a fair hearing for the other party as it will reduce delays in the court proceedings and result in a faster outcome.

Federal Circuit Court of Australia Act 1999

Item 4 of Schedule 2 of the Bill will amend the Federal Circuit Court of Australia Act to confer jurisdiction on the Federal Circuit Court of Australia to hear tenancy disputes where the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is the lessor (other than as a sublessor), licensor (other than as a sublicensor) or the grantor of a right to possess, occupy or use land owned by the Commonwealth, and the lessee (other than as a sublessee), licensee (other than as a sublicensee) or grantee is a person other than the Commonwealth, a person suing or being sued on behalf of the Commonwealth, or a Commonwealth officer or employee.
This amendment promotes the right to a fair hearing. Currently, in most jurisdictions, the applicable law provides for resolution of tenancy disputes in a state or territory tribunal, which can lead to inconsistency of approach. While superior courts may also be able to hear these matters, it is not considered an appropriate use of these courts’ resources. Moreover, these courts are more costly than the Federal Circuit Court, meaning there is currently no suitable or affordable forum to hear these disputes.
The conferral of jurisdiction on the Federal Circuit Court will provide a cost effective and efficient forum to resolve Commonwealth tenancy disputes, promoting the right to a fair hearing.

The right to freedom from arbitrary arrest or detention

Federal Court of Australia Act 1976
Item 10 of Schedule 1 of the Bill will amend the Federal Court of Australia Act to provide an arrester the power to use reasonable force to enter premises in order to execute an arrest warrant. Under existing provisions in the Federal Court of Australia Act, the Federal Court of Australia may issue an arrest warrant where a person who is the subject of proceedings for contempt of court or for a summary offence has failed to attend the Court.
As the legislation currently stands, there is uncertainty about whether reasonable force can be used to enter premises to execute an arrest warrant. This means that circumstances can arise where an arrest warrant is unable to be executed because an arrestee is inside premises. This can delay the Court process and burden the justice system. The proposed amendments are a reasonable, necessary and proportionate response to this issue as they will ensure an arrestee is able to be arrested and brought promptly before the Court in circumstances where they may otherwise attempt to evade arrest by staying inside premises.

Police officers, court sheriffs and deputy court sheriffs (the arresters) will be the only persons able to exercise this power and will only be able to enter premises using such force as is necessary and reasonable in the circumstances if they reasonably believe the arrestee is on premises . This limitation on the class of persons who may use force ensures that arresters have received appropriate and adequate training to ensure arrests are made in a safe and correct manner, using the minimum force necessary to arrest the arrestee. Arresters who do not adhere to the safeguards provided in this item may face criminal charges, particularly if they are found to have used more force than is reasonably necessary to make the arrest. Moreover, the arresters will be wearing uniforms in order to be correctly identified by the arrestees.

These amendments will not change the already established grounds and procedures for arrest and detention which provide that:

·            an arrestee must be informed of the reason for their arrest and any charges against them

·            anyone arrested must be brought promptly before a court and tried within a reasonable period or released from detention

·            anyone arrested may challenge the lawfulness of the detention

·            anyone who is detained must be treated humanely, and

·            anyone charged with a criminal offence is to be presumed innocent until proven guilty.

These amendments will not allow an arrestee to be arrested or detained arbitrarily because they are aimed at the legitimate and lawful objective of bringing a person who is the subject of an arrest warrant before the Court. Furthermore, these amendments are reasonable, necessary and proportionate to the objective of achieving the efficient administration of justice.
The right to privacy
Federal Court of Australia Act 1976
Item 10 of Schedule 1 of the Bill will amend the Federal Court of Australia Act to provide an arrester the power to use reasonable force to enter premises in order to execute an arrest warrant. Under existing provisions in the Federal Court of Australia Act, the Federal Court of Australia may issue an arrest warrant where a person who is the subject of proceedings for contempt of court or for a summary offence has failed to attend the Court.
As the legislation currently stands, there is uncertainty about whether reasonable force can be used to enter premises to execute an arrest warrant. This means that circumstances can arise where an arrest warrant is unable to be executed because an arrestee is inside premises. This can delay the Court process and burden the justice system.  While the proposed amendments do limit the right to privacy, the amendments are reasonable, necessary and proportionate as they will ensure an arrestee is able to be arrested and brought promptly before the Court in circumstances where they may otherwise attempt to evade arrest by staying inside premises.

Additionally, the arresters will not be able to enter a dwelling house between 9 pm one day and 6 am the next day unless they reasonably believe that it would not be practicable to arrest the arrestee there or elsewhere at another time. This limitation prevents interference with an arrestee’s place of residence or dwelling during the hours when an individual is most likely to wish to enjoy their privacy. It also recognises that the purpose of arresting an arrestee is to bring them before the Court, which is unlikely to be sitting between the hours of 9 pm and 6 am. However, proposed subsection 55A(3) provides that arresters may enter a dwelling house between these hours if he or she reasonably believes that it would not be practicable to arrest the arrestee there or elsewhere at another time, for example where an arrestee is actively seeking to evade arrest.

These amendments will not allow an arrestee to have their privacy arbitrarily interfered with because they are aimed at the legitimate and lawful objective of bringing a person who is the subject of an arrest warrant before the Court. Furthermore, these amendments are reasonable, necessary and proportionate to the objective of achieving the efficient administration of justice.
 


NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

This clause provides for the Bill to be cited as the Federal Courts Legislation Amendment Act 2014 once enacted.

Clause 2 - Commencement

This clause provides that the Federal Courts Legislation Amendment Act 2014 will commence on the day after the Act receives the Royal Assent.

Clause 3 - Schedules

This clause provides that legislation that is specified in a Schedule to the Federal Courts Legislation Amendment Act 2014 is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms.

SCHEDULE 1—federal court of australia

GENERAL OUTLINE

Schedule 1 will make amendments to the Federal Court of Australia Act 1976.

The purpose of the amendments is to make minor and technical amendments to improve the clarity and operation of the Federal Court of Australia Act.

Federal Court of Australia Act 1976

Item 1: Section 4

This item will insert definitions that are necessary for the correct interpretation and application of new section 55A (inserted by item 10).

This item will insert the definition of conveyance to include a vehicle, a vessel and an aircraft.

This item will also insert the definition of dwelling house to include a conveyance, or a room in accommodation, in which people ordinarily retire for the night.

This item will also insert the definition of police officer to mean a member or special member of the Australian Federal Police or a member of the police force or police service of a state or territory.

This item will also insert the definition of premises to include a place and a conveyance.

Item 2: Subsection 24(1AA)

This item will amend subsection 24(1AA) of the Federal Court of Australia Act to insert references to paragraphs 24(1)(d) and (e).

Subsection 24(1AA) currently provides that appeals in relation to minor procedural decisions must not be brought from judgments of the Federal Court of Australia constituted by a single Judge exercising the original jurisdiction of the Court (paragraph 24(1)(a)).

The minor procedural decisions referred to in subsection 24(1AA) include determinations on applications such as leave to institute proceedings in the Court and leave to amend the grounds of an application or appeal, decisions on joining or removing a party and decisions on changing a hearing date.

Paragraph 24(1)(d) refers to appeals from judgments of the Federal Circuit Court of Australia exercising original jurisdiction under a law of the Commonwealth other than the Family Law Act 1975 , the Child Support (Assessment) Act 1989 , the Child Support (Registration and Collection) Act 1988 , or regulations under one of these Acts. Paragraph 24(1)(e) refers to appeals from judgments of the Federal Circuit Court exercising jurisdiction under section 72Q of the Child Support (Registration and Collection) Act.

The amendment will expand the scope of the subsection so that appeals cannot be brought from a judgment of the Federal Circuit Court of Australia as specified by paragraphs 24(1)(d) and (e), in addition to judgments under paragraph 24(1)(a), if the judgment is a minor procedural decision.

Such minor procedural decisions are interlocutory in nature, from which there should be no avenue of appeal. Clarifying that there is no right to appeal for these types of matters will ensure the efficient administration of justice by reducing delays caused by dealing with vexatious appeals from these decisions.

Item 3: Paragraphs 24(1AA)(b) and (d)

This item will repeal paragraphs 24(1AA)(b) and (d) of the Federal Court of Australia Act 1976 and will replace them with new paragraph 24(1AA)(b).

Subsection 24(1AA) currently provides that an appeal from certain judgments cannot be brought if the judgment is:

·            a determination of an application of the kind mentioned in subsection 20(3) such as leave to institute proceedings in the court and leave to amend the grounds of an application or appeal (paragraph 24(1AA)(a))

·            a decision to join or remove a party, or not to join or remove a party (paragraph 24(1AA)(b)), or

·            a decision to adjourn or expedite a hearing or to vacate a hearing date (paragraph 24(1AA)(d)).

Paragraph 24(1AA)(d) is intended to bar appeals from a decision refusing to adjourn or expedite a hearing, or to vacate a hearing date, in addition to decisions to grant such an application. However, unlike paragraph 24(1AA)(b), the paragraph makes no express reference to decisions not to adjourn or expedite a hearing, or to vacate a hearing date. There is some doubt as to whether the paragraph applies to decisions refusing to grant such an application.

New paragraph 24(1AA)(b) clarifies this by expressly referring to decisions ‘to do, or not to do’, any of the following:

·            join or remove a party

·            adjourn or expedite a hearing, or

·            vacate a hearing date.

New paragraph 24(1AA)(b) also consolidates current paragraphs 24(1AA)(b) and 24(1AA)(d). This will make the provision clearer and improve readability.

The decisions barred from appeal by subsection 24(1AA) are minor procedural decisions which are interlocutory in nature, from which there should be no avenue of appeal. Clarifying that there is no right to appeal decisions that refuse, for example, applications for the change of a hearing date will ensure the efficient administration of justice by reducing delays caused by vexatious appeals.

Item 4: After paragraph 24(1D)(c)

This item will insert new paragraph 24(1D)(ca) to the Federal Court of Australia Act 1976 , which adds a reference to summary judgments made under section 17A of the Federal Circuit Court of Australia Act 1999 .

The amendment will ensure that leave to appeal must be granted before an appeal in relation to a summary judgment of the Federal Circuit Court of Australia under section 17A can be brought.

Subsection 24(1A) provides that appeals from certain judgments cannot be brought without leave to appeal if they are interlocutory judgments. Leave to appeal is not required for certain interlocutory judgments as specified under subsection 24(1C). Subsection 24(1D) lists decisions that are taken to be interlocutory judgments for the purposes of subsections 24(1A) and (1C).

There is currently uncertainty as to whether judgments under section 17A of the Federal Circuit Court of Australia Act are interlocutory for the purpose of an appeal under subsections 24(1A) and (1C) of the Federal Court of Australia Act. This amendment will clarify that summary judgments under section 17A are interlocutory for the purpose of an appeal under subsections 24(1A) and (1C) of the Federal Court of Australia Act.

Item 5: Paragraphs 33(4A)(b) and (d)

This item will repeal paragraphs 33(4A)(b) and (d) of the Federal Court of Australia Act 1976 and will replace them with new paragraph 33(4A)(b).

Subsection 33(4A) currently provides that an appeal from certain judgments of the Federal Court of Australia cannot be brought to the High Court of Australia in the exercise of its original jurisdiction if the judgment is:

·            a determination of an application of the kind mentioned in subsection 20(3) such as leave to institute proceedings in the court and leave to amend the grounds of an application or appeal (paragraph 33(4A)(a))

·            a decision to join or remove a party, or not to join or remove a party (paragraph 33(4A)(b)), or

·            a decision to adjourn or expedite a hearing or to vacate a hearing date (paragraph 33(4A)(d)).

Paragraph 33(4A)(d) is intended to bar appeals from a decision refusing to adjourn or expedite a hearing, or to vacate a hearing date, in addition to decisions to grant such an application. However, unlike paragraph 33(4A)(b), the paragraph makes no express reference to decisions not to adjourn or expedite a hearing, or to vacate a hearing date. There is some doubt as to whether the paragraph applies to decisions refusing to grant such an application.

New paragraph 33(4A)(b) will clarify this by expressly referring to decisions ‘to do, or not to do’, any of the following:

·            join or remove a party

·            adjourn or expedite a hearing, or

·            vacate a hearing date.

New paragraph 33(4A)(b) will also consolidate current paragraphs 33(4A)(b) and 33(4A)(d). This will make the provision clearer and improve readability.

The decisions barred from appeal by subsection 33(4A) are minor procedural decisions which are interlocutory in nature, from which there should be no avenue of appeal. Clarifying that there is no right to appeal decisions that refuse, for example, applications for the change of a hearing date will ensure the efficient administration of justice by reducing delays caused by dealing with vexatious appeals.

Item 6: Paragraphs 33(4B)(b) to (h)

This item will repeal paragraphs 33(4B)(b) to (h) of the Federal Court of Australia Act 1976 and will substitute them with new paragraphs 33(4B)(c) and (d).

Subsection 33(4B) currently provides that an appeal from certain judgments of the Federal Court of Australia cannot be brought to the High Court of Australia in the exercise of its appellate jurisdiction if the judgment is:

·            a decision to join or remove a party, or not to join or remove a party (paragraph 33(4B)(b))

·            an order under section 29 (paragraph 33(4B)(c))

·            a decision to grant or refuse leave to defend a proceeding (paragraph 33(4B)(e))

·            a decision to reinstate an appeal that was taken to have been abandoned or dismissed (paragraph 33(4B)(f))

·            a decision to extend the time for making an application for leave to appeal (paragraph 33(4B)(g)), or

·            a decision to adjourn or expedite a hearing or to vacate a hearing date (paragraph 33(4B)(h)).

Paragraphs 33(4B)(f), (g) and (h) are intended to bar appeals from a decision refusing the application in addition to decisions to grant the application. However, unlike paragraphs 33(4B)(b) or (e), paragraphs 33(4B)(f), (g) and (h) make no express reference to decisions not to grant an application. There is some doubt as to whether these paragraphs apply to decisions refusing to grant an application.

New paragraph 33(4B)(d) will clarify this by expressly referring to decisions ‘to do, or not to do’, any of the following:

·            join or remove a party

·            grant leave to defend a proceeding

·            reinstate an appeal that was taken to have been abandoned or dismissed

·            extend the time for making an application for leave to appeal

·            adjourn or expedite a hearing, or

·            vacate a hearing date.

New paragraph 33(4B)(d) will also consolidate current paragraphs 33(4B)(b) and 33(4B)(e) to (h). This will make the provision clearer and improve readability. Paragraph 33(4B)(c) will be unchanged.

Such minor procedural decisions are interlocutory in nature, from which there should be no avenue of appeal. Clarifying that there is no right to appeal decisions that refuse the applications described above will ensure the efficient administration of justice by reducing delays caused by dealing with vexatious appeals.

Item 7: Application

This item will apply the amendments of sections 24 (inserted by items 2, 3 and 4) and 33 (inserted by items 5 and 6) of the Federal Court of Australia Act 1976 , to the bringing of appeals on or after the commencement of the amendments, whether the judgments being appealed from were made before, on or after commencement of the amendments.

This means that once these amendments commence, there will be no doubt that there is no right to appeal minor procedural decisions, such as those provided for in sections 24 and 33, even if the judgments being appealed from were made before the commencement of the amendments. Such minor procedural decisions are interlocutory in nature, from which there should be no avenue of appeal. This will ensure the efficient administration of justice by reducing delays caused by dealing with vexatious appeals from these decisions.

Item 8: Subsection 43(1)

This item will repeal and replace subsection 43(1) of the Federal Court of Australia Act 1976 in order to add a reference to section 18 of the Public Interest Disclosure Act 2013 . The amendment will also improve readability.

Subsection 43(1) provides the Federal Court of Australia with jurisdiction to award costs in all Federal Court of Australia proceedings, except where any other Act provides otherwise. Subsection 43(1) currently refers to the limitation in awarding costs stipulated in subsection 43(1A) of the Federal Court of Australia Act and section 570 of the Fair Work Act 2009 .

Section 18 of the Public Interest Disclosure Act provides that costs may not be awarded against an applicant in relation to certain proceedings under the Public Interest Disclosure Act.

This amendment will ensure that subsection 43(1) also refers to the costs limitations in section 18 of the Public Interest Disclosure Act, which is modelled on section 570 of the Fair Work Act.

This amendment will have no substantive effect on the operation of subsection 43(1) but will ensure clarity about the limitations on the Federal Court of Australia’s jurisdiction to award costs, and will assist readers to locate related provisions on costs. This item does not affect the costs limitations that apply under section 18 of the Public Interest Disclosure Act. The limitations continue to apply to all proceedings, whether commenced before, on or after commencement of the amendment of section 43 of the Federal Court of Australia Act, which simply clarifies the limitations on the Federal Court of Australia’s jurisdiction to award costs.  

Item 9: Application

This item will apply the amendment of section 43 of the Federal Court of Australia Act 1976 (inserted by item 8) to proceedings instituted on or after commencement of the amendment.

Item 10: After section 55

This item will insert a new section 55A titled Making arrests under this Act or warrants .

Under existing provisions in the Federal Court of Australia Act, the Federal Court of Australia may issue an arrest warrant where a person who is the subject of proceedings for contempt of court or for a summary offence has failed to attend the Court. As the legislation currently stands, there is uncertainty about whether a power of entry into premises exists, for the purposes of executing an arrest warrant. Therefore, without these amendments, circumstances can arise where arrest warrants are unable to be executed because an arrestee is inside premises. This can delay the Court process and burden the justice system.

New subsection 55A(1) will provide that new section 55A applies to police officers, court sheriffs and deputy court sheriffs (each of whom are referred to as the arrester) who are authorised by the Federal Court of Australia Act 1976 , or a warrant issued under the Act or the Rules of Court to arrest another person (known as the arrestee). This limitation on the class of persons who may use force under new section 55A ensures that arresters have received appropriate and adequate training to ensure arrests are made in a safe and correct manner, using the minimum force necessary to arrest the arrestee.

New subsection 55A(2) will provide that if the arrester reasonably believes the arrestee is on premises, the arrester may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the arrestee or arresting the arrestee. For example, subsection 55A(2) would allow an arrester to force open a door in order to enter premises or to restrain an arrestee who does not wish to voluntarily accompany the arrester to the court, in compliance with a properly issued arrest warrant under the Federal Court of Australia Act or the Rules of Court. Subsection 55A(2) would not authorise the use of force that was unreasonable or excessive in the circumstances, such as force which results in serious physical injury in circumstances where the arrestee was complying with instructions from the arrester and voluntarily accompanying the arrester. Subsection 55A(2) is subject to the safeguards set out in subsection 55A(4), discussed below.

New subsection 55A(3) will provide that the arrester must not enter a dwelling house between 9 pm one day and 6 am the next day unless the arrester reasonable believes that it would not be practicable to arrest the arrestee there or elsewhere at another time. Consistent with the amendments to section 4 of the Federal Court Act in item 1 of this Schedule, dwelling house will be defined to include a conveyance or a room in accommodation in which people ordinarily retire for the night.  Conveyance will be defined in section 4 of the Federal Court Act, as amended by item 1 of this Schedule, to include a vehicle, vessel and aircraft. 

This limitation prevents interference with an arrestee’s place of residence or dwelling during the hours when an individual is most likely to wish to enjoy their privacy. It also recognises that the purpose of arresting an arrestee is to bring them before the Court, which is unlikely to be sitting between the hours of 9pm and 6am.  However, subsection 55A(3) provides that arresters may enter a dwelling house between these hours if he or she reasonably believes that it would not be practicable to arrest the arrestee there or elsewhere at another time, for example where an arrestee is actively seeking to evade arrest.

New subsection 55A(4) will provide that in the course of arresting the arrestee, the arrester must not use more force, or subject the arrestee to greater indignity, than is necessary and reasonable to make the arrest or to prevent the arrestee’s escape after the arrest. It will also provide that the arrester must not do anything that is likely to cause the death of, or grievous bodily harm to, the arrestee unless the arrester reasonably believes that doing that thing is necessary to protect the life or prevent serious injury to another person (including the arrester). It will also provide that if the arrestee is attempting to escape arrest by fleeing, the arrester must not do anything that is likely to cause the death of, or grievous bodily harm to, the arrestee unless the arrester reasonably believes that doing that thing is necessary to protect life or prevent serious injury to another person (including the arrester), and the arrestee has, if practicable, been called on to surrender and the arrester reasonably believes that the arrestee cannot be arrested in any other way.

This subsection recognises Commonwealth criminal law policy, as set out in ‘ A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers’ (the Guide), that legislation should only allow an authorised officer to use such force against persons as is necessary and reasonable to execute a warrant. The limitations imposed on the use of force by subsection 55A(4) represent situations of unreasonable force, or force that is disproportionate and could result in death or grievous bodily harm. 

New subsection 55A(5) will provide that when arresting the arrestee, the arrester must inform the arrestee of the grounds for the arrest. This ensures that the arrestee is made aware of the existence of a properly executed warrant and is informed of the grounds on which he or she is being arrested. 

New subsection 55A(6) will provide that it is sufficient if the arrestee is informed of the substance of the grounds for the arrest, not necessarily in precise or technical language. This reflects that it is the substance of the grounds of the arrest that are important, rather than the precise words that are used to describe the grounds. This ensures that arresters have flexibility in how they describe the grounds of arrest and are not locked into using particular formulations of words. It will also ensure that minor or technical errors made by an arrester (such as a reference to the wrong section number in the Federal Court of Australia Act or the Rules of Court) do not raise concerns about the basis for the arrest.

New subsection 55(7) will provide that new subsection 55A(5) does not apply if the arrestee should, in the circumstances, know the substance of the grounds for the arrest, or the arrestee’s actions make it impracticable for the arrester to inform the arrestee of the grounds for the arrest. These subsections will ensure that as far as is practicable, the arrestee will be kept fully informed about the reasons for their arrest bearing in mind that some arrests involving the use of force may be incompatible with a clear description of the grounds for arrest, such as where the arrestee is trying to evade arrest or is verbally abusive and aggressive. 

The above powers are modelled on sections 3ZB, 3ZC and 3ZD of the Crimes Act 1914 to ensure that they include appropriate limits and safeguards for arresters in conducting arrests under the Federal Court of Australia Act or the Rules of Court .

Item 11: Application of section 55A

This item will provide that new section 55A of the Federal Court of Australia Act 1976 (inserted by item 10) applies in relation to arrests that are authorised by the Act after the commencement of section 55A, or authorised by warrants issued under the Act after the commencement of section 55A.

Therefore, new section 55A has no application to arrests authorised by the Act, or arrests authorised by warrants issued under the Act , before the commencement of section 55A.



 

SCHEDULE 2—FEDERAL CIRCUIT COURT OF AUSTRALIA

GENERAL OUTLINE

Schedule 2 will make amendments to the Federal Circuit Court of Australia Act 1999.

The purpose of the amendments is to make minor and technical amendments to improve the clarity and operation of the Federal Circuit Court of Australia Act, and to confer jurisdiction on the Federal Circuit Court to hear certain Commonwealth tenancy disputes.

Part 1—Commonwealth tenancy disputes

Federal Circuit Court of Australia Act 1999

Item 1: Section 5

This item inserts new definitions that are necessary to assist with the correct interpretation and application of new section 10AA (inserted by item 4).

New section 10AA will confer jurisdiction on the Federal Circuit Court of Australia in relation to tenancy disputes where:

·            the lessor (other than as a sublessor), licensor (other than as a sublicensor) or the grantor of a right to possess, occupy or use land owned by the Commonwealth, is the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, and

·            the lessee (other than as a sublessee), licensee (other than as a sublicensee) or grantee, is a person other than the Commonwealth, a person suing or being sued on behalf of the Commonwealth, or a Commonwealth officer or employee.

This item will insert a definition of Commonwealth officer or employee into section 5 of the Federal Circuit Court of Australia Act, to mean a person who:

(a)     is appointed or engaged under the Public Service Act 1999 ; or

(b)    is appointed under another law of the Commonwealth; or 

(c)     holds an office established by a law of the Commonwealth; or

(d)    is employed by a public authority of the Commonwealth; or

(e)     is a member of the Defence Force; or

(f)     is the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979 ).

This item will also insert the definition of Commonwealth tenancy dispute to mean a matter:

(a)     involving a lease, licence or other arrangement to possess, occupy or use land and a dispute about:

(i)      the recovery of rent or other payments payable under or in relation to the lease, licence or other arrangement; or 

(ii)    the termination of the lease, licence or other arrangement; or 

(iii) the possession, occupation or use of the land; and

(b)    in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party.

For the purposes of the definition of a Commonwealth tenancy dispute, an example of an ‘other arrangement to possess, occupy or use land’ may include informal arrangements under which a person enjoys such rights.

This item will also insert the definition of public authority of the Commonwealth , which is referred to in paragraph (d) of the definition of Commonwealth officer or employee (as inserted by item 1 of this Schedule), to mean:

(a)     a body incorporated, whether before or after the commencement of this definition, for a public purpose by a law of the Commonwealth, being a body corporate employing staff on its own behalf; or

(b)    an authority or body, not being a body corporate, established, whether before or after the commencement of this definition, for a public purpose by, or in accordance with the provisions of, a law of the Commonwealth, being an authority or body employing staff on its own behalf; or 

(c)     an incorporated company over which the Commonwealth, or a body or authority mentioned in paragraph (a) or (b), is in a position to exercise control.

Item 2: Section 10 (heading)

This item will repeal the heading Jurisdiction and insert the heading Original jurisdiction—general . This will ensure that the heading reflects the content of the section, which provides detail on how original jurisdiction is vested in the Federal Circuit Court of Australia.

Item 3: After subsection 10(1)

This item will insert a new subsection 10(1A) which will explain that the Federal Circuit Court of Australia also has such original jurisdiction as is conferred on it by a legislative instrument made under new section 10AA (inserted by item 4).

Item 4: After section 10

This item will insert a new section 10AA which will confer jurisdiction on the Federal Circuit Court of Australia in relation to tenancy disputes where:

·            the lessor (other than as a sublessor), licensor (other than as a sublicensor) or the grantor of a right to possess, occupy or use land owned by the Commonwealth, is the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, and

·            the lessee (other than as a sublessee), licensee (other than as a sublicensee) or grantee, is a person other than the Commonwealth, a person suing or being sued on behalf of the Commonwealth, or a Commonwealth officer or employee.

Currently, in most jurisdictions, the applicable law provides for resolution of tenancy disputes in a state or territory tribunal, which can lead to inconsistency of approach. Commonwealth tenancy disputes may also be resolved in some cases through the Federal Court of Australia, or possibly a superior state court. However, this is a time consuming and expensive exercise, and an inappropriate use of superior court and Commonwealth resources. A more appropriate approach is to confer the relevant jurisdiction on the Federal Circuit Court as the lowest and least expensive Commonwealth court.

The item will also provide that the Minister may, by legislative instrument, confer jurisdiction on the Federal Circuit Court of Australia in respect of any other specified Commonwealth tenancy dispute (to be defined in section 5, as amended by item 1 of this Schedule), including those not encompassed by new section 10AA. This provision aims to reduce the burden of making future legislative amendments to the Federal Circuit Court of Australia Act 1999 if it is considered appropriate for the Federal Circuit Court to have jurisdiction to determine additional Commonwealth tenancy disputes, such as those in which the Commonwealth is a sublessor or a sublicensor, or a lessee. In these situations, the Federal Circuit Court may be the most appropriate forum to hear these matters for the same reasons outlined above.

This item will also provide that the Minister may, by legislative instrument, make provision for and in relation to any of the list of matters set out in new subsection 10AA(3) in respect of a Commonwealth tenancy dispute (to be defined in section 5, as amended by item 1 of this Schedule):

·             the rights of the parties to the Commonwealth tenancy dispute

·            the law (whether a law of the Commonwealth or a law of a State or Territory) to be applied in determining the Commonwealth tenancy dispute (the applicable law)

·            any modifications of the applicable law that are to apply in relation to the Commonwealth tenancy dispute

·            the powers that the Federal Circuit Court of Australia may exercise under the applicable law, and

·            if the Federal Circuit Court of Australia makes an order when exercising jurisdiction over the Commonwealth tenancy dispute—the powers that may be exercised when executing the order or a class of orders.

This provision aims to ensure, as far as possible, that the rights of the parties to the Commonwealth tenancy dispute are not substantially different from the rights of parties to tenancy disputes. This provision will enable the Minister to flexibly respond to particular issues in relation to particular state or territory regimes which might arise in the context of conferral of jurisdiction on a federal court, such as:

·            omitting or modifying provisions to ensure the vested jurisdiction is suitable for a court, and

·            ensuring that there are clear and valid enforcement mechanisms available.

Legislative instruments conferring additional jurisdiction or making provision for issues that arise in the context of conferral of jurisdiction on a federal court would remain subject to parliamentary scrutiny, consistent with the requirements of the Legislative Instruments Act 2003 .

Item 5: Application

This item will provide that the amendments made by this Part apply in relation to a lease, licence or other arrangement entered into before the day this item commences and a Commonwealth tenancy dispute between the parties to the lease, licence or other arrangement that arises before, on or after the day this item commences.

This item will also provide that the amendments made by this Part apply in relation to a lease, licence or other arrangement entered into on or after the day this item commences and a Commonwealth tenancy dispute between the parties to the lease, licence or other arrangement that arises on or after the day this item commences.

Part 2—Costs

Federal Circuit Court of Australia Act 1999

Item 6: At the end of subsection 79(1)

Subsection 79(2) of the Federal Circuit Court of Australia Act 1999 sets out the general jurisdiction of the Federal Circuit Court to award costs except where any other Act provides otherwise. Subsection 79(1) limits the ability of the Federal Circuit Court to award costs in specific proceedings. Currently subsection 79(1) provides that section 79 does not apply to family law or child support proceedings or proceedings in relation to a matter arising under the Fair Work Act 2009 .

This item will amend subsection 79(1) to provide that section 79 also does not apply to proceedings under sections 14, 15 or 16 of the Public Interest Disclosure Act 2013 .

This amendment will have no substantive effect on the operation of subsection 79(1) but will ensure clarity about the limitations on the Federal Circuit Court’s jurisdiction to award costs, and will assist readers to locate related provisions.

Item 7: Subsection 79(1) (at the end of the note)

The note at the end of subsection 79(1) of the Federal Circuit Court of Australia 1999 currently directs the reader to provisions within the Family Law Act 1975 and the Fair Work Act 2009 that provide for the awarding of costs for proceedings to which section 79 does not apply by virtue of subsection 79(1).

Section 18 of the Public Interest Disclosure Act 2013 provides that costs may not be awarded against an applicant in relation to proceedings under sections 14, 15 or 16 of the Public Interest Disclosure Act, except where proceedings have been instituted vexatiously.

This item will direct the reader to refer to section 18 in relation to proceedings arising under section 14, 15 or 16 of the Public Interest Disclosure Act.

This amendment will have no substantive effect on the operation of subsection 79(1) but will ensure clarity about the limitations on the Federal Circuit Court of Australia’s jurisdiction to award costs, and will assist readers to locate related costs provisions.

Item 8: Application of amendments of section 79

This item will apply the amendments of section 79 of the Federal Circuit Court of Australia Act 1999 (inserted by items 6 and 7) to proceedings instituted on or after commencement of the amendments.