Media briefing paper
15 December 2000
The Judicial Power of the Commonwealth (Discussion paper 64)
Key issues for the ALRC inquiry
The Australian Law Reform Commission's Discussion Paper 64, The Judicial Power of the Commonwealth: A review of the Judiciary Act 1903 and related legislation (DP 64), does not make specific proposals for reform, but raises many issues that will be taken up during the process of consultation across Australia in February and March 2001. The following issues have been identified on the basis that they may be of considerable public interest - they do not necessarily reflect the Commission's position on a given issue.Allocating original federal jurisdiction - Chapter 2
The Commonwealth's power to allocate original federal jurisdiction between state and federal courts allows Parliament to determine what work federal and state courts do in respect of federal matters. This chapter examines how and why original jurisdiction is allocated between courts.
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Should the High Court be given exclusive jurisdiction to determine constitutional matters or, alternatively, should such jurisdiction be more widely conferred? (For example, in addition to the High Court, the Federal Court and state courts, should it be conferred on the Family Court and the Federal Magistrates Service?)
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Certain federal matters are currently excluded from adjudication in state courts. Should jurisdiction over these matters be more broadly conferred, for example, by conferring jurisdiction on federal courts (other than the High Court) and state courts in matters arising between states or in claims for prerogative writs against Commonwealth officers?
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Should the High Court continue to act as the Court of Disputed Returns in relation to federal electoral matters? If not, which court(s) should exercise this jurisdiction?
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Should the Federal Court be a court exercising general federal jurisdiction? If so, what effect is this likely to have on the role and status of state courts?
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To what extent can and should the Commonwealth Parliament dictate the practice and procedure of a state court exercising federal jurisdiction? What conditions, if any, should be imposed on the exercise of federal jurisdiction by state courts?
Transfer of proceedings - Chapter 3
This chapter considers the transfer of proceedings between and within courts exercising original federal jurisdiction and jurisdiction under Commonwealth laws. Several mechanisms for transfer are considered in detail in this chapter, namely
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transfers within a court to bring about a change of venue
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transfers within a court from a single judge to a Full Court by way of a case stated or question reserved
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transfers between courts in the form of a case stated or question reserved
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remittal of matters from one court to another court lower in the judicial hierarchy, and
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removal of matters from one court to another court higher in the judicial hierarchy.
Specific issues arising in relation to these matters are as follows.
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When is it appropriate for the usual appellate process to be circumvented by the transfer of a matter from one court to another court before final judgment, for example, by way of case stated or question reserved? Should the issues transferred necessarily be questions of law or matters of public importance? Should criteria for transfer be left to judicial development or embodied in legislation?
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What principles should be used to determine which is the most appropriate court for the trial of an action? Should these principles be set down in federal legislation? Should these principles be uniform for all federal courts or for all courts exercising federal jurisdiction?
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In what circumstances should a matter be remitted by the High Court to a lower court? Should the Judiciary Act stipulate the factors that the High Court should consider in determining whether to remit a matter or retain it? Relevant factors might include: whether the case raises constitutional issues; whether there are conflicting decisions of intermediate appellate courts; the interests of justice; the interests of the parties; and the workload of the High Court.
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What use, if any, should be made of other mechanisms for discouraging inappropriate use of the High Court's original jurisdiction, such as refusing costs to a successful plaintiff or awarding costs on the lower scale of a state court that would have been competent to hear the action?
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Which courts should have the power to remove a matter from a court lower in the judicial hierarchy? Should it only be the High Court (as at present) or should the power be extended to other courts (for example, intermediate appellate courts)? In what circumstances should removal be permitted?
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In what circumstances should an Attorney-General for the Commonwealth, a state or a territory be able to intervene in an action in the High Court? Should the circumstances extend beyond constitutional issues, as presently provided by s 78A of the Judiciary Act?
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Should any changes be made to the current requirement for notice to be given to all Attorneys-General of constitutional matters arising in litigation in any Australian court? For example, should the Judiciary Act confer a discretion on superior courts hearing such matters to determine whether a notice is required under s 78B, or should particular types of constitutional issues or particular courts (for example, lower courts) be excluded from the operation of the notice provisions?
Appellate jurisdiction - Chapter 4
Appellate jurisdiction is a crucial feature of the allocation and exercise of federal civil jurisdiction. This chapter outlines the structure and aims of the federal appeals system, the different avenues of appeal to the High Court and other federal courts, and areas that might require reform.
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Are any changes needed to the procedures for granting special leave to appeal to the High Court? For example, should the High Court be able to determine applications for special leave to appeal on the basis of the written papers, without oral argument; should the High Court provide short form written reasons for the grant or refusal of special leave to appeal; should a special leave application in a civil matter be able to be determined by a single judge?
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Should the High Court's appellate jurisdiction be streamlined by removing certain anomalies? For example, should the treaty between Australia and Nauru providing for certain appeals from the Supreme Court of Nauru to the High Court be terminated and the Nauru (High Court Appeals) Act 1976 repealed?
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Section 95(b) of the Family Law Act 1975 currently allows the Family Court to certify that 'an important question of law or of public interest' may be appealed from that Court to the High Court, thereby circumventing the special leave process. Should this mechanism be removed? Alternatively, should it be extended to the Federal Court?
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Should the Federal Court continue to act as the intermediate appellate court from certain decisions of state courts exercising federal jurisdiction (for example, in intellectual property matters)? Alternatively, should such matters be appealed within the state court system, or should they be heard at both first instance and on appeal in the Federal Court?
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Should first appeals to a federal court be by leave of the court rather than by right (as is the current situation)? If so what should be the criteria for granting leave, who should determine applications for leave and should such determinations themselves be immune from appeal?
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Should the appellate structure of the Federal Court be changed, such as by introducing a permanent appellate court rather than constituting appellate courts from a rotating pool of trial judges?
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Should the number of judges hearing first appeals in federal courts be altered to allow some appeals to be heard by a bench of two? If so, in what certain circumstances should smaller courts be convened?
Claims against the Commonwealth - Chapter 5
This chapter considers the procedural and substantive rights of parties in proceedings in which the Commonwealth is a defendant or in which a party seeks to enforce a law against the Commonwealth. Central to the discussion is a constellation of immunities that have been recognised by the common law as pertaining to the Crown, but which have been generally eroded over time.
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Should the Commonwealth be treated differently to ordinary citizens and thus be immune in whole or part from the general operation of the law, or should it be treated the same as ordinary citizens and thus exposed to the operation of the law?
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Should legislation expressly state that the Commonwealth's traditional immunity from being sued is abolished, to the extent that the Constitution does not already achieve this result?
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Should the Commonwealth's immunity from tort be completely removed? In particular, should the existing principle that the Commonwealth is not vicariously liable for torts of its employees or agents, who act with 'independent discretion,' be removed?
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Should the Commonwealth Parliament legislate to empower the courts to award damages for loss resulting from wrongful administrative action?
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Should the Commonwealth's immunity from Commonwealth statutes be removed? Additionally, to what extent should the Commonwealth be bound by state legislation? In either case, what exceptions, if any, should exist?
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Should the Commonwealth's immunity from execution of a judgment be removed or amended to allow execution against commercial property?
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In what circumstances should government business entities that engage in commercial activities benefit from prevailing Commonwealth immunities?
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To the extent that the Constitution permits, should the same principles of immunity be applied to the states as are applied to the Commonwealth? To what extent can and should the Commonwealth legislate with respect to the substantive liability of the states?
Law applicable in federal jurisdiction - Chapter 6
This chapter considers the problems that arise when courts apply procedural or substantive laws of a state or territory in the course of proceedings in federal jurisdiction, in the absence of federal laws governing the matter at hand.
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To what extent should courts exercising federal jurisdiction determine procedural or substantive matters arising in the course of litigation by reference to:
a) procedural or substantive federal law
b) federal choice of law rules which determine the manner and extent to which state laws are 'picked up' and applied in federal proceedings
c) state and territory laws (whether substantive, procedural, or choice of law)
d) a combination of federal, state and territory laws, or
e) the common law of Australia?
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Is there any need for separate rules for determining the law applicable in claims against the Commonwealth? If so, what should those rules be?
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Should sections 79 and 80 of Judiciary Act, which presently determine the manner and extent to which state laws are to be 'picked up' and applied in federal jurisdiction, be amended or replaced by a single provision that clarifies
a) the role of the common law of Australia in filling gaps and in providing choice of law rules in federal jurisdiction
b) the extent to which the provision applies to both procedural and substantive matters
c) the extent to which the provision applies to both common law and statutory law
d) whether the provision applies only those state laws that are relevant to the disposition of the matter before the court, or to all state laws - if the former, what test of relevance should be adopted to separate state laws that are picked up from those that are not
e) the extent to which the provision should be permitted to alter the meaning of a state law (for example, in cases where federal law picks up state laws that are expressed to apply to proceedings in nominated state courts)
f) how to identify the place at which federal jurisdiction is being exercised, and
g) the circumstances in which another federal law displaces the operation of a federal provision that picks up state law?
Territories - Chapter 7
Since 1903 there have been very significant changes to the structure and operation of the federal judicial system. One development has been the granting of self-government to the internal territories, which now exercise considerable autonomy over their judicial affairs. This chapter considers the complex issues relating to the nature of judicial power in Commonwealth territories and the relative merits of legislative regimes governing the Australian Capital Territory (ACT) and Northern Territory.
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Should the Judiciary Act invest the courts of the Northern Territory and the ACT with general federal jurisdiction in a similar manner to the states?
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Should the Judiciary Act be amended so as make similar provision for the ACT and the Northern Territory as regards the exercise of jurisdiction in territory courts? Alternatively, should both territories be regulated in the same manner as the states as far as possible?
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In particular
a) should the Supreme Courts of each territory have jurisdiction in suits between the Commonwealth and the territory?
b) should the Supreme Courts of each territory have jurisdiction to grant prerogative relief against an officer of the Commonwealth?
c) should a first appeal from the Supreme Court of the each territory lie directly to the Federal Court (as in the ACT) or to a Full Court of that Supreme Court (as in the Northern Territory)? -
Is the general immunity of the Northern Territory from execution contained in s 67E of the Judiciary Act desirable? Should it be coupled with an obligation on the part of the Treasurer to satisfy the judgment debt from monies legally available for that purpose?
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Should s 39B(1A)(c) of the Federal Court of Australia Act 1976 (giving the Federal Court jurisdiction in any matter arising under a law made by Parliament) include common law matters arising in the territories?
Location, consolidation and simplification - Chapter 8
This chapter considers the location, consolidation and simplification of provisions in the Judiciary Act, such as whether there are certain provisions that ought to be relocated in other legislation or repealed altogether. This aspect of the inquiry goes beyond an assessment of those provisions of the Judiciary Act considered elsewhere in the paper and addresses general questions of the structure of this Act and related Acts.
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Are certain provisions of the Judiciary Act outdated or obsolete and, if so, should they be repealed. For example:
a) sections 82-85 of the Judiciary Act, which make provision for venue in suits for pecuniary penalties, taxes and forfeiture
b) Part VIII of the Judiciary Act, relating to certain orders made in connection with an ASIS raid in Melbourne in 1983. -
Should provisions in the Judiciary Act regulating the jurisdiction, practice and procedure of federal courts be relocated to such Acts establishing those courts? For example:
a) Should provisions relating to the original jurisdiction of each federal court be located in the Acts establishing those courts?
b) Should all provisions relating to the appellate jurisdiction of each federal court be located in the Acts regulating the jurisdiction of the court from which an appeal is taken or in the Acts regulating the jurisdiction of the court to which an appeal is brought?
c) Should the provisions relating to the High Court's practice and procedure be relocated to the High Court of Australia Act 1979?
d) Should some or all of the provisions of the Judiciary Act relating to the territories be relocated to other legislation, including the legislation granting the territories self-government?
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Should the provisions relating to the rights of practice of solicitors and barristers be retained in the Judiciary Act or relocated to a new Act? Should the provisions relating to the Australian Government Solicitor and the Attorney-General's Legal Services Directions be relocated in a new Act?
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Should the Judiciary Act be renamed to describe its contents more accurately? If so, what name might be appropriate?
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If major amendments are made to the content of the Judiciary Act, should the Act be renumbered?