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Launch of the ALRC Judiciary Act report, Australian Law Reform Commission, York Street, Sydney.



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The Hon Daryl Williams AM QC MP Attorney-General

Launch of the ALRC Judiciary Act Report

Australian Law Reform Commission

Level 10 , 131 York Street, Sydney

11.00am, Wednesday, 3 October 2001

Introduction

1. It is a pleasure to be with you this morning to officially launch the

Australian Law Reform Commission’s report into the Judiciary Act.

2. The Judiciary Act is one of the most significant pieces of legislation

ever enacted by the Commonwealth Parliament.

It is central to our federal system of Government.

3. It deals with the exercise of original jurisdiction by the federal courts

and their appellate jurisdiction.

It provides for the exercise of federal jurisdiction by State and Territory

courts.

It confers the right of the Commonwealth, State and Territory Attorneys-General to intervene in constitutional cases.

And it deals with claims against the Commonwealth and the exercise of

judicial power in the Territories.

Scope of the Review

4. It was in January 2000 that I asked the Commission to undertake the

deceptively straightforward task of examining the Judiciary Act.

In general terms, I requested that the Commission consider whether the

Act ensures the most appropriate arrangements are in place for the

Launch of the ALRC Judiciary Act Report 3 October 2001

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efficient administration of law and justice in the exercise of federal

jurisdiction.

5. In undertaking the review, I asked the Commission to examine a number

of specific issues.

6. These included the source, scope, and exercise of the judicial power of

the Commonwealth in civil matters; the distribution of federal judicial

power among federal and State courts; the nature of judicial power in

the Territories; the extent to which claims may be made against the

Commonwealth; and the desirability of consolidating and simplifying

the Act.

7. Even without considering federal jurisdiction in criminal matters or

cross-vesting and migration jurisdictions, this was an enormous and

complex task.

Indeed the report refers to suggestions that some of the issues dealt with

could easily have been the subject of individual reviews.1

And I note that a relatively large number of findings actually

recommend that further research be carried out.

8. It is indicative of the professionalism and intellectual rigour of the

Commission that a report of such width of coverage and depth has been

produced in such a short period of time.

9. Both the discussion paper and the final report represent a substantial

contribution to the body of scholarship on Commonwealth judicial

matters.

I want to take this opportunity to acknowledge the excellent work of the

Commission, the Advisory Committee and Commissioner Opeskin.

1 Paragraph 1.5 of the ALRC report.

Launch of the ALRC Judiciary Act Report 3 October 2001

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The Federal Judicial System

10. The Judiciary Act has needed review for some time.

As the Commission itself notes, there have been significant changes to

the structure and operation of the federal system since 1903.2

11. Clearly, there has been a considerable expansion in size and importance

of the federal judicial system since the Judiciary Act came into

operation.

This expansion has been a response to the increasing complexity of

Australia’s federal system, and the expansion of the role of the

Commonwealth in the nation’s life.

12. At the establishment of the Commonwealth in 1901, there were no

federal courts.

Each of the colonies that became States had court structures that were

already established and continued their operations.

13. The Constitution provided for the creation of an entirely new federal

court, the High Court, which was to have original and appellate

jurisdiction.

14. The High Court has been the constant in the federal judicial system over

the last century.

Its creation created a unifying umbrella over the State courts, providing

a court of appeal from the Supreme Courts of the States, and later from

the other federal courts.

15. The original role of the High Court has changed significantly since

federation.

Its position as the final court of appeal for Australia has been

significantly strengthened, and it is now at the apex of the judicial

2 Paragraph 1.3 of the ALRC report.

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4

system.3

And its role has been affected by the growth in all areas in which federal

courts operate.

16. By way of example, the Commonwealth Parliament passed only 328

Acts from the establishment of the Commonwealth until 1914.4

In the last financial year alone, the Parliament passed in the vicinity of

250 Acts.

This increased legislative activity has put greater demands on the

workload of the federal judiciary, including the High Court.

17. Three important legislative changes were made in 1977 which assisted

in easing the High Court’s workload.

18. The first was the establishment of the Federal Court, which allowed

some of the High Court’s original jurisdiction workload to be

transferred to that new court.

19. The High Court was also given the power in 1977 to remit cases

commenced in its original jurisdiction to Federal, State and Territory

Courts.5

The High Court frequently exercises that power to remit cases.

20. The third change was the introduction of the need for special leave to

appeal to the High Court.

21. As a result of these changes, the High Court’s predominant function is

now to hear appeals from the Full Courts of the Federal and Family

Courts and State and Territory Supreme Courts.

It is now the usual practice for the High Court in its original jurisdiction

3 There can no longer be an appeal from the High Court to the Privy Council: Privy Council (Limitation of Appeals) Act 1968. Nor can there be an appeal to the Privy Council from other Australian Courts: Privy Council (Appeals from the High Court) Act 1975. 4

‘Development of the Commonwealth Statute Book 1901-1986’, Finemore J, p.28 in ‘Essays on Legislative Drafting’, ed. David St L Kelly, 1988. 5 Section 44 of the Judiciary Act.

Launch of the ALRC Judiciary Act Report 3 October 2001

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to hear only constitutional cases or some judicial review matters under

section 75(v) of the Constitution.

22. The Commission has looked at both the original and appellate

jurisdiction of the High Court and has made a number of interesting

recommendations which the Government will be carefully considering.

New Federal Courts

23. For many years, State and Territory Courts and the High Court were

solely responsible for the application and interpretation of

Commonwealth laws.

There were some specialist federal courts created but the range of laws

they dealt with was quite limited.

Examples of such courts include the Commonwealth Industrial Court6

and the Federal Court of Bankruptcy.7

24. A major revamping of the federal justice system came with the

establishment of the Family Court of Australia in 1976 and the Federal

Court of Australia in 1977.

These developments changed the structure of the Australian judicial

system.

And they changed the relationship of the State courts and the High

Court.

25. There were two main reasons for establishing the Federal Court.

As I have already indicated, one was to take over some of the workload

of the High Court in matters arising under Commonwealth or Territory

laws.

The other was to provide a federal forum to deal with special areas of

federal laws.

6 This Court replaced the Commonwealth Conciliation and Arbitration Court following the decision of the High Court in 1956 in the Boilermakers case. The Court was renamed the Australian Industrial Court in 1973. 7

This Court was created in 1930.

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26. It was considered the Federal Court would provide a more appropriate

structure for the exercise of jurisdiction in the increasingly varied

matters

of special federal concern.

These have come to include things such as social welfare entitlements,

family relationships, native title, privacy, intellectual property and

discrimination.

27. The Federal Court’s jurisdiction now covers almost all civil matters

arising under Commonwealth legislation as well as some summary

criminal matters.

The Court also has a substantial and diverse appellate jurisdiction.

28. As the Commission points out, original jurisdiction is now conferred on

the Federal Court by approximately 140 Commonwealth Acts.8

These Acts range from the Aboriginal and Torres Strait Islander

Commission Act 1989 to the World Heritage Properties Conservation

Act 1983.

And they cover such diverse topics as treasury bills9 and space

activities.10

29. The Commission has examined the original and appellate jurisdiction of

the Federal Court in some detail.

Recommendations have been made to clarify uncertainties in particular

areas and to streamline the exercise of the appellate jurisdiction of the

Court.

30. The Commission has also made some recommendations concerning the

original and appellate jurisdiction of the Family Court.

8 Federal Court of Australia Annual Report 1999-2000, p.1. 9 Treasury Bills Act 1914. 10

Space Activities Act 1998.

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31. Additionally, the Commission has made a number of recommendations

on the distribution of federal judicial power among federal and State

courts.

I look forward to considering these recommendations in more detail.

Judicial Power in the Territories

32. I also asked the Commission to look at judicial power in the Territories.

And I note the Commission has recommended that a court of appeal be

established for the ACT Supreme Court to hear appeals from the ACT

Supreme Court11, which are currently heard by the Federal Court.

33. The ACT recently passed the Supreme Court Amendment Act 2001 to

provide for an ACT Court of Appeal.

34. I am pleased to say that just last week the Commonwealth introduced

legislation into the Federal Parliament to facilitate the establishment of

the ACT Court of Appeal.

The Commonwealth Jurisdiction of Courts Legislation Amendment Bill

2001 complements the ACT legislation by removing the appellate

jurisdiction from the Federal Court in relation to appeals from the ACT

Supreme Court.

35. I would like to take this opportunity to thank the judges of the Federal

Court for their appellate work for the ACT.

Their work has been of the highest quality and it has been greatly

appreciated.

36. It is expected that the current system of Federal Court judges being

appointed as additional judges to the ACT Supreme Court will continue.

These judges will also be eligible to sit on the Court of Appeal.

Claims Against the Commonwealth

11 Recommendation 39-1 at p. 670 of the ALRC Report.

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37. I also asked the Commission to look at the extent to which claims may

be made against the Commonwealth.

As many of you know, the provisions dealing with suits by and against

the Commonwealth have been the source of much judicial consideration.

38. As the Commission notes, this is a difficult and complex area of law and

raises a number of important questions of policy.

The Commission has made a number of recommendations in this area

which will require comprehensive examination.

39. Another area that the Commission has examined is the provisions of the

Judiciary Act that specify the law to be applied by courts exercising

federal jurisdiction.12

Many practitioners will appreciate the difficulties that can arise under

the existing provisions and will welcome suggestions for clarifying

these provisions.

Increasing Efficiency - The Federal Magistrates Service

40. The principle against which the Commission was asked to consider the

provisions of the Act was the efficient administration of law and justice

in the exercise of federal jurisdiction.

41. It is clear that there has been a substantial increase in the range of

matters now covered by the federal civil justice system dealt with by the

Act and related legislation.

This increasing workload also brings with it the challenge of ensuring

that the delivery of justice remains timely, efficient and cost-effective.

42. It was this challenge that was the driving force behind the establishment

of the Federal Magistrates Service.

The Service has facilitated simpler and more streamlined administration

of justice in the federal judicial sphere.

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43. To make the concept of speedy justice a reality, the Service has been

resolving cases in six months or less.

And since it commenced hearing cases in July last year, applications

have been filed for over 4,500 family law matters - other than divorces -and for 2,000 non-family law matters.

The Service has also dealt with the vast majority of divorce applications.

44. I pleased to be able to say that the Federal Magistrates Service has

proven to be a successful addition to the federal judicial system.

45. It is key part of the Howard Government’s commitment to ensuring all

Australians have a greater range of options for resolving their legal

problems as quickly and cheaply as possible.

46. I am confident that it will play an increasingly important role in the

exercise of Commonwealth judicial power.

Conclusion

47. I have not yet had the opportunity to consider this report in any great

detail and to formulate the Government’s reponse to its

recommendations.

48. However, it is plain to see that the Commission has succeeded in

dissecting and analysing one of the most complex and sometimes

esoteric area of Australian jurisprudence.

49. The Judiciary Act lies at the very heart of our federal system.

The ongoing health of that system depends in part on the willingness of

governments to tackle some of the difficult technical issues raised in this

report.

50. I welcome this report as a significant contribution to the federal judicial

system.

12 Sections 79 and 80.