Barnett, Michael --- "Inquiry Into the Judiciary Act" [2001] ALRCRefJl 27; (2001) 79 Australian Law Reform Commission Reform Journal 54

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Reform Issue 79 Spring 2001

This article appeared on pages 54 – 59 & 74 of the original journal.

Inquiry into the Judiciary Act

The Judiciary Act 1903 (Cth) is the most significant Act regulating the structure of the Australian judicial system and the jurisdiction of the courts that comprise it.

However, the Act is also one of Australia’s oldest, and desperately in need of strategic overhaul. As Michael Barnett* writes, the ALRC has completed the first systematic review of the Judiciary Act and related legislation. The ALRC proposed 125 recommendations for change in its report, The Judicial Power of the Commonwealth (ALRC 92).

When the Australian Law Reform Commission began its inquiry in January 2000, at the request of federal Attorney-General, the Hon Daryl Williams AM QC MP, its brief was to examine:

• the source, scope and exercise of the judicial power of the Commonwealth in civil matters;

• the conferral of federal jurisdiction on federal and state courts;

• the conferral of jurisdiction on territory courts; and

• proceedings relating to claims against the Commonwealth.

In December 2000, the Commission released a discussion paper, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation (DP 64). Following the release of DP 64, the Commission consulted extensively across Australia and received 41 written submissions. This article describes the thrust of the 125 recommendations contained in the report.

Original jurisdiction

Federal jurisdiction refers to the authority of a court to adjudicate matters under Chapter III of the Constitution. It is a central feature of the Australian judicial system that the Commonwealth Parliament may confer this jurisdiction on federal, state or territory courts, and may make that jurisdiction either exclusive or concurrent.

The High Court. The ALRC identified only one area in which there appeared to be controversy regarding the conferral of additional federal jurisdiction on the High Court. Under the Commonwealth Electoral Act 1918 (Cth) the High Court, sitting as the ‘Court of Disputed Returns’, has jurisdiction in respect of disputed electoral returns and the qualification of members of Parliament. While there is no necessity for Australia’s highest court to have original jurisdiction in federal electoral matters, on balance the ALRC considers it appropriate for the High Court to determine matters pertaining to voting for and composition of the Australian Parliament.

The ALRC notes the confusion that has arisen from time to time from the conferral of electoral jurisdiction on the Court of Disputed Returns and recommends that jurisdiction under the Commonwealth Electoral Act be conferred on the High Court directly.

The Federal Court. The Federal Court was established in 1976 and was initially conferred with jurisdiction in only a few areas of federal law. Today, jurisdiction is conferred on the Court by approximately 150 Acts of Parliament. Since 1997, the Judiciary Act has also granted the Federal Court jurisdiction over all matters arising under federal law.

The conferral of original jurisdiction on the Federal Court from overlapping sources has created uncertainty for litigants and the Court. The Attorney-General should order a review of the relationship between the various sources that confer jurisdiction on the Court.

The Family Court. Another issue was whether the Family Court might be better placed to do complete justice between the parties if its jurisdiction extended to other federal matters that sometimes arise in the course of family law proceedings, such as bankruptcy. The ALRC recommends that the Attorney-General review this question.

State courts exercising federal jurisdiction

Since 1903, the Commonwealth has relied heavily on state courts to exercise federal civil jurisdiction and state courts are subject to certain conditions under the Judiciary Act when doing so. The ALRC’s recommendations are aimed at clarifying the operation of the relevant provisions and removing obsolete provisions. Recommendations include removing the obsolete language, which states that when federal jurisdiction is exercised by a state court of summary jurisdiction, it must be exercised by a particular kind of magistrate, such as a stipendiary, police or special magistrate. The ALRC recommends that the condition be amended to better reflect its original purpose that only suitably qualified magistrates exercise federal juridical power. Accordingly, federal jurisdiction should only be exercised by a state magistrate if the magistrate is qualified for admission as a legal practitioner in the Supreme Court of that State.

Exclusive or concurrent jurisdiction?

The Judiciary Act presently identifies circumstances in which federal jurisdiction is excluded from state courts, including matters arising directly under any treaty, suits between States, and suits between the Commonwealth and a State. The ALRC recommends that these provisions be repealed so that jurisdiction in these matters may be exercised by state courts. The ALRC also recommends that the Federal Court be expressly conferred with jurisdiction in these matters.

One class of matter that requires separate consideration is constitutional writs against Commonwealth officers. State courts are excluded from issuing such writs. The ALRC considers it appropriate that excesses of power by the officers of one polity should be restrained solely by the courts of that polity. Similarly, the ALRC recommends that federal courts (other than the High Court) be excluded from issuing such orders against an officer of a State. Equivalent recommendations are made in relation to the Territories.

Constitutional litigation

The ALRC endorses the policy underlying the current allocation of jurisdiction in constitutional matters, by which jurisdiction is dispersed widely throughout the judicial system. This goal can be enhanced by expressly conferring jurisdiction on the Family Court and the Federal Magistrates Service in constitutional matters that arise in the course of proceedings otherwise within their jurisdiction. Northern Territory and ACT courts should also have the same jurisdiction in constitutional matters as the state courts.

Section 78B of the Judiciary Act provides that mandatory notice be given to each Attorney-General of a constitutional ‘cause’ pending in any Australian court. Responses to the inquiry indicated that there were deficiencies in the operation of s 78B. In particular, it produces unnecessary delays because it requires a court to halt proceedings while notices are issued to the Attorneys-General and a ‘reasonable time’ is allowed to elapse. The ALRC recommends that the s 78B procedure should be retained but refined to include clearer specification of the person on whom the obligation to issue notices rests, what the notice should contain, and how they are to be served. In addition, courts should be given a discretion to continue hearing a matter up to but not including final judgment, pending the Attorneys-General being notified and given a reasonable opportunity to make a submission to the court.

The ALRC has twice considered the legislative basis for intervention in proceedings by Attorneys-General in the context of broader inquiries into the law relating to standing to sue.¹ The ALRC affirms the approach taken in its earlier reports of liberalising the circumstances in which an Attorney-General may intervene by right. In particular, the right of an Attorney-General to intervene should be extended beyond constitutional matters to non-constitutional matters that raise an important question affecting the public interest in the jurisdiction represented by that Attorney-General.

Appellate jurisdiction of federal courts

It was widely accepted in consultations that federal legislation should stipulate more completely the nature of appeals in federal courts, although special constitutional considerations apply to the High Court. The ALRC recommends that, subject to constitutional constraints, legislation conferring appellate jurisdiction on each federal court be amended to specify the nature of the appeal undertaken by the court, and in particular to indicate that the appellate court has a discretion to admit further evidence, draw inferences from the evidence at trial and review findings of credibility of witnesses.

Nearly all appeals to the High Court require the grant of special leave to appeal. One anomaly in the High Court’s appellate jurisdiction concerns appeals from the Family Court. The Family Court has the power to bypass the special leave requirement by granting a certificate stating that an important question of law or public interest is involved. The Family Court traditionally has exercised this power with circumspection but the Court recently has signalled that it may adopt a more liberal approach to granting certificates in the future. The ALRC recommends that the certification procedure be abolished.

One issue that attracted widespread comment in relation to High Court appeals was the Court’s burgeoning workload and how best to manage it. Since 1984, all appeals to the High Court have required special leave to appeal except in the anomalous circumstances referred to above. This process allows the Court to screen both the content and volume of full appeals coming before it, in accordance with criteria set out in the Judiciary Act. However, considerable workload pressure is now being exerted on the Court by the volume of special leave applications themselves. There was substantial concern in responses to the inquiry, which the ALRC shares, that the amount of judicial time taken in screening appeals might in due course detract from the Court’s capacity to perform its core functions of determining major constitutional cases and important questions of general law. After considering a broad range of reform options the ALRC recommends that the procedures for determining special leave applications be reformed to enable the High Court to determine applications solely on the basis of written submissions from the parties, but with a discretion to list an application for oral hearing in appropriate cases. Such a procedure would not remove the possibility of oral argument, but would confine it to those cases in which the Court was of the opinion that oral argument would assist it in determining the merits of the application for special leave.

Appellate jurisdiction of the Federal Court

The Federal Court currently has jurisdiction to hear appeals from state courts in certain areas of federal law. The ALRC found that these cross-jurisdictional appeals represent a very small proportion of the Court’s total appellate caseload, and mainly occur in discrete areas such as intellectual property, extradition and workplace relations.

In relation to intellectual property and extradition, the ALRC recommends that original federal jurisdiction be removed from state and territory courts and conferred on federal courts exclusively. A fundamental consideration in relation to intellectual property matters is the importance of developing a uniform body of federal law in this specialised area in order to promote Australia’s participation in the global information and technology sectors. In relation to workplace relations, the ALRC recommends that there be no change to the present appellate arrangements. In relation to remaining areas of federal law subject to cross-jurisdictional appeals, the ALRC recommends that appellate jurisdiction be conferred on state courts and that parties be required to stay within the state or federal court system in which proceedings were initially commenced.

Two other matters relate to the capacity of the Federal Court to manage effectively its growing appellate caseload, namely, whether appeals to the Federal Court should continue to lie as of right and whether a Full Court should be constituted by two rather than three judges in some circumstances. In DP 64, the ALRC raised the question whether a leave to appeal procedure should be introduced in the Federal Court as a means of screening access to the Full Court. There was considerable resistance to the idea of removing the right to a first appeal. The ALRC supports this approach at the present time but acknowledges that the matter may need to be revisited in the future. However, the ALRC recommends that the category of cases in which leave to appeal is currently required, namely, interlocutory appeals, be expanded to include other specified categories of procedural appeals.

In relation to two-judge courts of appeal, the ALRC recommends that legislation be amended to permit interlocutory and procedural appeals to be determined by a Full Court of the Federal Court comprised of two or more judges. Where a Full Court is constituted by two judges and there is a difference of opinion as to the outcome of the appeal, the appeal should be redetermined before a bench comprising three or more judges, who may include the judges who originally heard the appeal.

A further issue concerned the appellate structure of the Federal Court. Some concerns were expressed about inconsistency between panels of the Full Court constituted by different judges. The ALRC does not believe, on the information presently available to it, that the problems of inconsistent decisions in the Federal Court are of sufficient magnitude to warrant an alteration to the Court’s own preferred appellate structure. The Attorney-General should keep under review the impact on the Federal Court of changes to its size and jurisdiction. In the interim, the ALRC recommends that the Court review its internal procedures for allocating judges to appellate benches with a view to further enhancing its current practice of using similarly constituted panels to hear similar kinds of appeals.

The report discusses two aspects of appeals to the Family Court, namely, the circumstances in which an appeal to the Family Court requires leave, and the circumstances in which a Full Court may be constituted by only two judges. The ALRC’s recommendations on these questions are the same as those described above in relation to the Federal Court.

Claims against the Commonwealth, States and Territories

This aspect of the reference raises important questions of policy regarding the immunities that the executive branch of government enjoys from the operation of the law of the land, whether common law or statutory. There are four core areas of immunity:

• procedural immunities enjoyed by the Commonwealth, including immunity from being sued, immunity from procedural orders made in the course of litigation, immunity from coercive civil remedies, and immunity from execution of judgments;

• immunity of the Commonwealth from the substantive common law, and most especially from liability in tort;

• the traditional presumption that executive government is immune from the operation of statutes; and

• the extent to which the immunities described above apply to a variety of persons or entities, ranging from those at the core of executive government to those at the periphery.

With the exception of immunity from execution, the ALRC’s recommendations in these areas remove the current common law immunities. The recommendations seek to ensure that if the executive is to be immune from the operation of a law that applies to ordinary citizens, this must be justified by legislation.

Accordingly, the ALRC recommends that the Commonwealth’s immunity from being sued, its immunity from procedural court orders and its immunity from coercive remedies be expressly abolished. The procedural rights of persons in legal proceedings against the Commonwealth should be expressed to be the same as those in a claim between persons of full age and capacity, unless a Commonwealth Act otherwise provides. The same principles should be applied to the States and the Territories in matters of federal jurisdiction.

The ALRC recommends that the existing law be clarified by stipulating that the Commonwealth is subject to the same substantive obligations at common law and in equity as apply to persons of full age and capacity, unless a Commonwealth Act otherwise provides. The Attorney-General should order a review of the circumstances in which a statutory exception should be made for the purpose of preserving any residual common law immunities that are considered desirable.

Every new Commonwealth Act should bind the Commonwealth executive unless the Act states expressly that the executive is not so bound. Existing Commonwealth Acts should be reviewed and amended if necessary within five years, after which the new rule of immunity should apply.

On the other hand, a respect for federalism indicates that every new Commonwealth Act should not bind the executives of the States or Territories unless the Act states expressly that those executives are so bound. Existing Commonwealth Acts should be reviewed and amended if necessary within five years, after which the new rule of immunity should apply.

Every new State or Territory Act should bind the Commonwealth executive, subject to three qualifications. These are that the Commonwealth should be able to exempt itself by regulation from the application of a state or territory Act; the Commonwealth should not be bound by a state or territory Act that does not bind the executive of that State or Territory; and the Commonwealth should not be bound by a state or territory Act that is expressed not to bind the Commonwealth. Existing state and territory Acts should be reviewed and any necessary exemptions should be made by regulation within five years, after which the new rule of immunity should apply.

New bodies established by a Commonwealth Act should not enjoy the immunities of the Commonwealth executive unless the Act states expressly that they are entitled to do so. Additionally, all Acts that establish existing Commonwealth bodies should be reviewed and amended if necessary within five years, after which the new rule of immunity should apply.

Law applicable in federal jurisdiction

Ascertaining the law to be applied by courts exercising federal jurisdiction has generated conceptual and practical difficulties since the Judiciary Act was enacted. The major problem is that the Commonwealth Parliament does not possess power to make laws governing every substantive issue that might arise in matters of federal jurisdiction. Even where Parliament has the necessary legislative power, it may not have exercised it.

There are several ways in which this gap in federal law might be filled and which are not mutually exclusive but can be used cumulatively. Parliament has already used each method to some extent.

The first option considered by the ALRC was whether the range of substantive matters that are subject to federal law should be extended. One issue that was brought to the attention of the ALRC was the limitation of actions. At present, Commonwealth legislation contains a few ad hoc limitation provisions, but there is no general statute that provides the full machinery for regulating the limitation of actions in federal jurisdiction. That gap is currently filled by state and territory laws, which impose different time bars and machinery provisions. There is considerable merit in enacting a federal limitation statute, and the ALRC recommends that the Attorney-General order a full review of this issue.

Another option was whether Parliament should enact federal choice of law rules, which indicate directly the legal rule to be applied in matters that have connections with more than one State or Territory. In 1992, the ALRC published a report, Choice of Law (ALRC 58), in which it recommended the enactment of a choice of law statute. The ALRC considers that the Attorney-General should consider implementing the recommendations of that earlier report, with two qualifications.

First, a federal choice of law statute should be applied only to proceedings in federal courts rather than to all courts exercising federal jurisdiction. Second, in relation to the choice of law rule for intra-Australian torts, the applicable law should be the law of the place of the tort, without a ‘flexible exception’. This exception would have permitted a court to depart from the usual rule of applying the law of the place where the tort was committed if a matter was more closely connected with another place. In consultations, strong objections were raised to the concept of a ‘flexible exception’. The High Court also has recently suggested that such a mechanism may be unconstitutional.

Judicial power in the Territories

The ALRC’s recommendations take into account the uncertainty created by the High Court’s changing understanding of the nature of judicial power in the Territories. The traditional view has been that judicial power in the Territories is founded on s 122 of the Constitution and is largely unaffected by Chapter III of the Constitution (ss 71-80). However, recent High Court decisions have increasingly sought to bring the Territories within the scope of Chapter III, at least in some respects. The resulting uncertainty has meant that the ALRC has recommended only those reforms that rest on sure constitutional foundations.

The ALRC’s principal recommendations in relation to the exercise of federal judicial power in the Northern Territory and the ACT are as follows.

• Federal jurisdiction should be conferred on territory courts in the same manner and subject to the same conditions as federal jurisdiction is invested on state courts.

• The Federal Court and the Supreme Courts of the Northern Territory and the ACT should be granted concurrent jurisdiction to hear and determine suits between the Commonwealth and a Territory.

• Territory courts should be precluded from granting public law remedies against an officer of the Commonwealth, and federal courts (other than the High Court) should be precluded from granting them against an officer of a Territory. However, more liberal jurisdictional provisions should apply where an officer may exercise territory and Commonwealth functions pursuant to an intergovernmental arrangement.

• The jurisdiction of the Federal Court should exclude common law claims arising in a Territory as well as statutory claims arising under a law made by a territory legislature, except to the extent that they form part of the Federal Court’s accrued jurisdiction.

• An intermediate appellate court should be established for the ACT to hear those appeals from a single judge of the ACT Supreme Court that currently go to the Federal Court.

To the extent that the Constitution permits, these reforms aim to achieve parity of treatment between the Northern Territory and the ACT, and between the Territories and the States, in respect of the exercise of federal judicial power.

*Michael Barnett is a Principal Legal Officer at the Australian Law Reform Commission.

Endnotes

1. Australian Law Reform Commission Standing in Public Interest Litigation (ALRC 27), Australian Government Publishing Service, Canberra, 1985; Australian Law Reform Commission Beyond the Door-keeper: Standing to Sue for Public Remedies (ALRC 78), ALRC, Sydney 1996.