Review of the Judiciary Act 1903

The terms of reference required the ALRC to review the Judiciary Act and related legislation, taking into account, among other things, whether these Acts provide for the efficient administration of law and justice in the exercise of federal jurisdiction.

The ALRC was specifically asked to consider such matters as the source, scope and exercise of federal judicial power in civil matters, the conferral of federal jurisdiction on federal, state and territory courts, choice of law in federal jurisdiction and provisions dealing with claims against the Commonwealth.

Key recommendations

• The High Court should be able to determine special leave applications solely on the basis of the written submissions of the parties, with the Court having a discretion to list an application for oral hearing in such circumstances as the Court thinks fit.
• Federal courts should have exclusive original and appellate jurisdiction in relation to federal intellectual property matters and extradition matters.
• Appeals to a Full Court of the Federal Court or Family Court should generally continue to lie as of right rather than by leave of the Court.
• Relevant sections of the Judiciary Act should be repealed so that state courts may exercise jurisdiction in relation to matters such as treaties, suits between States and suits between the Commonwealth and a State. The Federal Court should also be given jurisdiction in relation to these matters.
• The right of an Attorney-General to intervene under s 78A of the Judiciary Act should be extended to non constitutional matters that raise an important question affecting the public interest in the jurisdiction represented by that Attorney-General. There should also be reforms to the procedure for notifying Attorneys-General of pending constitutional cases.
• Anachronistic immunities – including the Commonwealth’s immunity from being sued, its immunity from procedural court orders and its immunity from coercive remedies – should be abolished and replaced with a more contemporary approach, which values transparency, accountability and equality.
• Every new Commonwealth Act should bind the Commonwealth unless the Act expressly states otherwise.
• The Commonwealth should enact a federal limitation statute in respect of causes of action arising under federal law.
• Federal jurisdiction should be invested in the courts of the ACT and Northern Territory in the same manner and to the same extent as federal jurisdiction is invested in State courts.

Implementation

There has been no formal government response to the recommendations in ALRC Report 92. A number of the recommendations have, however, been implemented.

An amendment to remove the appellate jurisdiction of the Federal Court of Australia in relation to the newly established ACT Court of Appeal was passed in the Jurisdiction of Courts Legislation Amendment Act 2002 (Cth), taking effect from 14 October 2002. The need for this amendment was identified in ALRC 92 (Recommendation 39–1).

Recommendations in ALRC Report 92 to allow, and provide a legislative basis for, special leave applications to the High Court to be determined on the papers without parties’ consent, and that no appeal should lie from a decision to grant or refuse leave to appeal, were supported in the Australian Government Attorney-General’s Department Federal Civil Justice System Strategy Paper, which was released for consultation in December 2003.

The High Court Rules 2004 (Cth), which commenced operation in January 2005, completely revising the High Court’s Rules of Court. The new Rules specifically provide that if two justices conclude that an application for special leave is without merit, it will be dismissed without calling on the respondent to answer. In addition, any application for leave or special leave to appeal, whether the applicant is represented or unrepresented, may be determined on the papers without oral hearing, if two justices consider it appropriate to do so. These changes to the Rules implemented Recommendations 19–6 and 19–7.

Among a number of measures, the Family Law Amendment Act 2005 (Cth) removes the power of the full Family Court to issue certificates saying no special leave to appeal to the High Court is needed in cases raising important questions of law or public interest (ie, the repeal of s 95(b) of the Family Law Act 1975). This is direct implementation of Recommendation 19–3 of ALRC 92, allowing the High Court to better regulate its own workload and priorities.

Draft Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2009 (Cth)

In July 2009, the Attorney-General’s Department released a Draft Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2009 (Cth). The Bill is the result of a review which commenced in 2006.

Key proposals in the exposure draft legislation are directed towards reducing delays in current processes, ensuring Australia does not become a safe haven for fugitives and the proceeds of crime, and expanding the range of law enforcement tools available through the mutual assistance process. The proposed reforms maintain appropriate safeguards and judicial review, and strengthen certain human rights protections in the existing legislation.

The ALRC made a submission to the review, highlighting recommendations made in ALRC Report 92.

Currently, functions under the Extradition Act 1988 (Cth) and the Mutual Assistance Act in Criminal Matters Act 1987 (Cth) are exercisable by state and territory magistrates. Part 1 of the Bill contains amendments which would enable Federal Magistrates to perform functions under these Acts, in addition to state and territory magistrates. It is proposed to confer on Federal Magistrates all functions currently conferred on state and territory magistrates under the Extradition Act and the Mutual Assistance Act (with the exception of those conferred by Division 2 of Part VI relating to proceeds of crime proceedings which can only be heard before state and territory magistrates). Part 1 of Schedule 2 of the Bill would limit jurisdiction to review extradition decisions to federal courts.

The provisions of the Bill are generally consistent with Recommendation 20–2 of ALRC Report 92. However, Recommendation 20–2 stated that federal legislation should be amended to provide that original and appellate jurisdiction in matters arising under the Extradition Act be conferred exclusively on federal courts. As stated above, state and territory magistrates will continue to have original jurisdiction in relation to extradition and mutual assistance matters.