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2023
THE LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
COURTS LEGISLATION
AMENDMENT BILL 2023
EXPLANATORY STATEMENT
and
HUMAN RIGHTS COMPATIBILITY
STATEMENT
(Human Rights Act 2004, s
37)
Presented by
Shane Rattenbury
MLA
Attorney-General
The Bill is not a Significant Bill. Significant Bills are
bills that have been assessed as likely to have significant engagement of human
rights and require more detailed reasoning in relation to compatibility with the
Human Rights Act 2004.
The Courts Legislation Amendment Bill 2023 (the Bill) will introduce a range of changes to courts legislation. The amendments will improve the efficiency of ACT court operations, organisation structures, and processes to ultimately make it quicker and easier for people to access justice.
Amendments
Amendment 1- The Bill removes the position of Associate Judge under the Supreme Court Act 1933, which will be replaced with the appointment of an additional Resident Judge position. This change is intended to promote court efficiencies, provide for greater flexibility in the allocation of court resources, and achieve greater equity within the courts in reflection of the evolved scope of the Associate Judge’s scope of duties.
Since the introduction of the Associate Judge role (or ‘Master’ as it was initially called), its jurisdiction expanded significantly over time through numerous legislative amendments. It was originally intended as a more junior judicial role that would predominantly preside over interlocutory work and limited civil matters (such as applications for discovery and applications concerning summary or default judgments). As its role expanded, the Associate Judge role evolved to now currently being very similar in scope to the role of a Resident Judge. There is little justification for keeping the two roles distinct.
Additionally, abolishing the Associate Judge position, which will be replaced with the appointment of a Resident Judge, increases court listing flexibility as all judges would have the jurisdiction to hear all types of matters.
Amendment 2 - The Bill extends the maximum term of appointment of an Acting Judge from 12-months to two-years by amending the Supreme Court Act 1933. This amendment will better align Acting Judge appointment terms with the principle of judicial tenure. Acting Judges step in on an as-needs basis to cover cases when Resident Judges are unavailable. This amendment will increase efficiencies within the ACT Courts operations, safeguard the independence of the judiciary and ensures the continuity of access to court resources.
Amendment 3 - The Bill clarifies that the common law immunity of Supreme Court judges applies to ACT magistrates, as well as registrars and deputy registrars when exercising delegated court functions, under the Magistrates Court Act 1930. This amendment seeks to remove ambiguity and uncertainty in the provisions under that Act relating to magisterial immunity, which have been substantially unchanged since their publication in 1930 in the Court of Petty Sessions Ordinance (No.2) 1930.
This amendment clarifies that magistrates hold the same immunity as Supreme Court judges when exercising their functions as a magistrate. The amendment clarifies that immunity extends to when magistrates exercise judicial and administrative functions. The amendment also extends that immunity to registrars and deputy registrars when exercising delegated court functions, aligning the ACT with immunity provisions held by similar roles in other jurisdictions. The amendment also enhances safeguard mechanisms to support judicial independence.
The amendment does not disturb the jurisprudence, operation, or scope of the common law immunity conferred to judges of superior courts, such as the ACT Supreme Court.
Amendment 4 - The Bill amends the Court Procedures Act 2004 to enable the Court Procedure Rules 2006 (the Rules) to provide the courts with the power to order costs against non-parties to proceedings, which will improve access to justice. Currently, the courts are prohibited from making a costs order against a non-party. The ACT is the only Australian jurisdiction to have this limitation. This can result in inequities and denial of justice to parties that are rightly entitled to receive costs. The amendment will enhance access to justice by ensuring that parties who are entitled to costs will receive them. This amendment also aligns the ACT jurisdiction with other jurisdictions.
CONSULTATION ON THE PROPOSED APPROACH
Extensive consultation has been undertaken during the development of this Bill with a range of stakeholders.
ACT Courts and Tribunal were consulted to ensure the amendments work on a practical level within the justice system.
Rights engaged
The amendment to enable rules to provide the courts with the power to order costs against non-parties engages the right to privacy and reputation, and the right to fair trial under sections 12 and 21 of the Human Rights Act 2004.
Rights Limited
1. Nature of the right and the
limitation
Allowing costs to be ordered against non-parties to proceedings limits an individual’s right to privacy and reputation, and fair trial.
The right to privacy and reputation is an individual’s right to be protected from having their privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and, less relevantly, to not have their reputation unlawfully attacked. The ability of the court to order costs against an individual who is not a party to a proceeding has the potential to affect an individual’s right to privacy as the individual would become involved in a proceeding that they are not party to.
The right to fair trial is the right to have all criminal charges, and rights
and obligations recognised by law, decided by a competent, independent, and
impartial court or tribunal after a fair and public hearing. The concept of
‘a right or obligation recognised by law’ includes civil
proceedings. The ability of the court to order costs against an individual who
is not a party to a proceeding has the potential to affect an individual’s
right to have their legal rights and obligations decided by a court after a fair
and public hearing. As they would not be a party to the relevant proceedings,
this right is accordingly limited.
2. Legitimate purpose (s
28(2)(b))
The amendment that enables the Rules to empower the court to order costs
against non-parties to proceedings has a legitimate purpose of enhancing access
to justice by ensuring parties who are rightly entitled to costs following the
finalisation of a proceeding have access to those costs from a non-party, where
it is in the interests of justice that costs are paid by the non-party and the
circumstances otherwise align with the principles set out by the High Court in
the case of Knight v FP Special Assets Limited (1992) 174 CLR
178[1] (Knight).
3. Rational
connection between the limitation and the purpose (s 28(2)(d))
This legitimate objective will be achieved by enabling the Rules to empower
the courts to order costs against non-parties, where the circumstances align
with the principles set out by the High Court in Knight. This amendment
will improve access to justice for parties who would otherwise be barred from
receiving costs they are rightly entitled to. By limiting these rights,
non-parties who fit the very specific category laid out by the principles in
Knight will no longer be inappropriately shielded by the corporate veil,
and will allow costs to be paid to a complainant where they otherwise could not
have been and where such payment would accord with the interest of justice in
the circumstances.
4. Proportionality (s 28(2)(e))
Enabling the Rules to empower courts to make non-party costs orders is the only option to ensure parties who are entitled to receive costs will actually receive them. There is no less restrictive way to achieve this. Currently, the ACT is the only jurisdiction in Australia that does not grant courts the power to make non-party costs orders. The amendments to the Court Procedures Act 2004 and any necessary amendments to the Rules would align ACT with other jurisdictions.
The court’s exercise of the power would be bound by common law
precedent on this issue, particularly the High Court authority in Knight
to limit the scope of court’s power. In Knight, the High Court
determined a general category of case where non-party costs orders would be
appropriate (the Knight Principles). The criteria for this category of case
are:
• where the party to the litigation is an insolvent person or
‘man of straw’;
• where the non-party has played an active
role in the conduct of litigation; and
• where the non-party, or some
person on whose behalf they are acting or by whom they have been appointed, has
an interest in the subject of the litigation; and
o where the circumstances of a case fall within this described category, an order for costs should be made against the non-party if it is in the interests of justice.
The court’s application of the power to order costs against non-parties will be guided by the Knight Principles, such that non-party costs orders will only be made where the non-party is substantially involved and possesses a personal interest in the outcome of the litigation, perhaps even contributing to the legal costs incurred. A ‘non-party’ of this nature would not have their privacy interfered with in an unlawful, or arbitrary way, but would have their right to privacy limited in a proportionate way to achieve the legitimate purpose of improving access to justice. Such non-parties would necessarily be far from being a stranger to the subject proceedings and, in the words of the High Court in Knight, they are in fact ‘the real party’.
The limitation of the right to privacy and fair trial is proportionate to the legitimate purpose of ensuring access to justice for victims where circumstances align the Knight Principles.
One important condition of non-party costs orders being made is that the non-party be significantly involved in the litigation. Additionally, non-party costs orders can only be made after the substantive proceeding issues have been decided. The non-party would likely be aware of the risk of such an order against them where they might otherwise be shielded by the corporate veil, which protects them from being held personally liable for costs.
The existing common law framework on non-party costs orders balances appropriate protections of human rights with the court’s power to order non-party costs. The amendments will not give the court unfettered power by ensuring that the non-party whose costs orders are made against have a real interest in the proceeding. As such, the limitations to the right to privacy and fair trial are proportionate to the purpose of the amendment, that is to enhance access to justice.
In accordance with section 37 of the Human Rights Act 2004 I have examined the Courts Legislation Amendment Bill 2023. In my opinion, having regard to the Bill and the outline of the policy considerations and justification of any limitations on rights outlined in this explanatory statement, the Bill as presented to the Legislative Assembly is consistent with the Human Rights Act 2004.
..........................................................
Shane Rattenbury MLA
Attorney-General
This clause provides that the name of the Act is the Courts Legislation Amendment Act 2023.
This clause provides for the commencement of the Act. The Act commences on the day after its notification day.
This clause identifies the legislation that will be amended are the:
• Court Procedures Act 2004;
• Magistrates Court
Act 1930; and
• Supreme Court Act 1933
in addition to other legislation under Schedule 1 of the Act.
This clause identifies the statutory instruments that will be repealed are
the:
• Supreme Court (Master Appointment Requirements) Determination
2010 (NI2010-13); and
• Supreme Court (Master) Conditions of
Appointment 2017 (No 1) (NI2017-242).
This clause omits the words ‘section 9 (2) (d) or (e)’ and replaces it with the words ‘section 9 (2) (c) or (d)’ to ensure the Chief Magistrate or another magistrate appointed by the Chief Magistrate remain as one of the members of the rule-making committee who must sign the making of a rule under section 7 or the approval of a form under section 8 of the Court Procedures Act 2004.
This clause substitutes section 9 (2) to remove the Associate Judge from the list of members of the rule-making committee and replace it with another Resident Judge. Any applicable appointments made under the former section 9 (2) are subject to the saving provision in section 94 (2) of the Legislation Act 2001, meaning they will continue to have effect under the new provision.
This clause substitutes section 11 (2) (a) and (b) to remove the Associate Judge from the list of members of the advisory committee and adds another Resident Judge, to be appointed by the Chief Justice, as a member of the advisory committee. New section 11 (2) (a) and (b) also provides that one of the Resident Judge members be the chairperson of the advisory committee.
This clause inserts a new note to section 11 (2). The new note provides that laws about appointments are at pt 19.3. of the Legislation Act 2001.
This clause substitutes section 11 (6) to (8) to provide that if the Resident Judge appointed as the chairperson is not present, the other Resident Judge member of the advisory committee is to chair the meeting. If both Resident Judges are not present, the members present must choose another member to chair the meeting.
This clause omits ‘or the associate judge’ from sections 18A (5) (a) (i). The omission removes the Associate Judge from constituting the court for reviews of a decision made by the registrar.
This clause substitutes the definition of judge in section 40 to remove reference to the Associate Judge.
This clause omits ‘the associate judge’ from Schedule 1, item 1 (3). The removes the jurisdiction of the Associate Judge as a subject matter for the rules.
This clause inserts a new item ‘(ca) costs against non-parties to proceedings’ in Schedule 1 Part 1.2 section 26. This amendment allows the rule-making committee to make rules allowing the court to order costs against non-parties. The court’s application of any such rule will be guided to the principles in Knight v FP Special Assets Limited (1992) 174 CLR 178[1].
This clause omits ‘associate judge’ and adds ‘judge’ and ‘magistrate’ in note 2 of the Dictionary.
This clause substitutes section 17A and 17C of the Magistrates Court Act 1930.
New section 17A provides that, where a magistrate exercises the functions of a magistrate, the magistrate has the same protection and immunity as a Supreme Court judge exercising the functions of a Supreme Court judge. The clause applies to magisterial functions under laws in force in the Territory, which includes applicable Commonwealth laws.
This immunity is extended to Magistrate Court registrars by virtue of the definition of the term ‘magistrate’ in the Dictionary, which, if a function of a magistrate is exercisable by a registrar, includes a registrar exercising that function. This immunity is also extended to Magistrate Court deputy registrars by virtue of the definition of the term ‘registrar’ in the Dictionary, which includes a deputy registrar of the court.
New section 17A also clarifies that the immunity applies to a magistrate’s exercise of judicial as well as administrative functions that relate to their judicial office. This clause does not disturb the jurisprudence, operation, or scope of the common law immunity conferred to judges of superior courts, such as the ACT Supreme Court.
This clause omits the section 17E to 17K.
This clause omits ‘12 months’ from section 4B(2) and replaces it with ‘2 years.’ The effect is to provide that the maximum term of appointment of an Acting Judge is 2 years.
For clarity, it should be noted that the position of an Acting Judge under the Supreme Court Act 1933 is separate and distinct from the position of a Resident Judge or Additional Judge under that Act. Given this distinction, Division 19.3.2 of the Legislation Act 2001 does not apply to the appointment of an Acting Judge, as an Acting Judge is not appointed to the position of Resident Judge or Additional Judge under the Supreme Court Act 1933 and does not act as a judge in the sense contemplated and intended by Division 19.3.2 of the Legislation Act 2001.
This clause omits section 5 (4) to remove reference to the Associate Judge. The seniority of judges otherwise remains the same.
This clause omits ‘when exercised by the associate judge under section 9; or’ from section 8 to remove reference to the Associate Judge.
This clause omits the section 9. The clause removes the jurisdiction of the Associate Judge.
This clause substitutes section 14 to remove reference to the Associate Judge. New section 14 provides that the opinion of the most senior judge sitting prevails over other judges’ opinions where the Full Court is equally divided in opinion.
This clause omits ‘, or the associate judge,’ from section 37E (4).
This clause omits Part 3. Part 3 provided for the functions, appointment and other legislative settings related to the position of the Associate Judge. As the position of Associate Judge is now abolished through this Act, Part 3 is accordingly omitted.
This clause omits ‘or associate judge’ from section 60A.
This clause inserts new part 13 Transitional—Courts Legislation Amendment Act 2023. These provisions will apply for four years from the day they commence as transitional provisions following the abolition of the position of Associate Judge.
New part 13 inserts a new definition of ‘associate judge’ as the Associate Judge (or Master of the court) under the Act before the position of Associate Judge was abolished, that is through section 23 of the Courts Legislation Amendment Act 2023.
New part 13 provides that an order of the Associate Judge is confirmed if the Full Court is divided in opinion regardless of section 14 (b); and that an appeal against an interlocutory order of the court made by the Associate Judge can only be brought with leave of the Court of Appeal.
New part 13 provides that appeals of an interlocutory order made by the Associate Judge only may be brought only with leave of the Court of Appeal.
New part 13 clarifies that the term ‘judge’ in section 60A, which is about the power to complete part-heard proceedings, includes the new definition of ‘associate judge’. This ensures any part-heard proceedings presided over by an Associate Judge prior to the abolition of the position can continue to be heard by the former Associate Judge under this provision.
New part 13 of the Act is repealed after 4 years from the date of its commencement. The effect of Part 13 will continue after its repeal.
This clause substitutes the heading of Schedule 1, part 1.1 ‘Chief Justice, judges and master’. The new heading of Schedule 1, part 1.1 is ‘Chief justice and judges’, removing reference to the Master or Associate Judge.
This clause omits [*Chief Justice/*judge/*master] and replaces it with [*Chief Justice/*judge], removing reference to the Master or Associate Judge.
This clause substitutes the heading of Schedule 1, part 1.2 ‘Chief Justice, judges and master’. The new heading of Schedule 1, part 1.2 is ‘Chief justice and judges’, removing reference to the Master or Associate Judge.
This clause omits [*Chief Justice/*judge/*master] and replaces it with [*Chief Justice/*judge], removing reference to the Master or Associate Judge.
This clause omits the definition of ‘associate judge’ and ‘master’ from the Dictionary.
This clause omits ‘of the Supreme Court’ from section 12 (2) (a). The term ‘judge’ will source its definition from the Legislation Act 2001, Dictionary, Part 1, which specifies that the term means a resident judge, additional judge or acting judge under the Supreme Court Act 1933.
By retaining reference to the ‘associate judge’, the prohibition on investigating actions taken by an associate judge will continue in perpetuity.
Clause 1.2 New section 12 (3)
This clause inserts a new definition of the term ‘associate judge’ to refer to the Master of the Supreme Court (which position is known as the Associate Judge) prior to the commencement of the repeal of Part 3 of the Supreme Court Act 1933, which provided for the Master of the Supreme Court.
By retaining reference to the ‘associate judge’, the prohibition on investigating actions taken by an associate judge will continue in perpetuity.
Clause 1.3 Dictionary, note 2
This clause inserts the terms ‘coroner’, ‘judge’, ‘magistrate’, and ‘ombudsman’ as terms defined under the Legislation Act 2001, Dictionary, Part 1.
This clause omits ‘the associate judge,’ from the definition of ‘issuing officer’ under section 195. The saving provision in section 84 of the Legislation Act 2001 applies to preserve the operation of any warrants issued by an Associate Judge prior to the commencement of this Act.
The saving provision in section 84 of the Legislation Act 2001 also applies to ensure a person does not unintentionally commit an offence for stating an incorrect name in a warrant under section 206 of the Confiscation of Criminal Assets Act 2003 where the warrant was previously issued by an Associate Judge prior to the commencement of this Act.
This clause omits ‘the associate judge,’ from the definition of ‘issuing officer’ under section 185. The saving provision in section 84 of the Legislation Act 2001 applies to preserve the operation of any warrants issued by an Associate Judge prior to the commencement of this Act. Warrants that may continue to be in force are saved by section 94 of the Legislation Act 2001.
This clause omits the note to remove references to the Associate Judge.
Clause 1.7 Dictionary, definition of judge
This clause omits the definition of ‘judge’ from the Dictionary to remove references to the Associate Judge. The term ‘judge’ will source its definition from the Legislation Act 2001, Dictionary, Part 1.
The saving provision in section 84 of the Legislation Act 2001 applies to preserve the operation of any warrants issued by an Associate Judge prior to the commencement of this Act. Warrants that may continue to be in force are saved by section 94 of the Legislation Act 2001.
This clause omits ‘the associate judge of the Supreme Court’ from the definition of ‘territory public official’.
Clause 1.9 New section 359 (4) and (5)
This clause clarifies that the term ‘public official’ includes an Associate Judge. This clause ensures the offence in section 359 continues to apply for each former Associate Judge after ceasing from that role.
Part 1.6 Drugs of Dependence Act 1989
Clause 1.10 Section 187 (1), definition of issuing officer, paragraph (a)
This clause omits ‘the associate judge,’ from the definition of ‘issuing officer’. The saving provision in section 84 of the Legislation Act 2001 applies to preserve the operation of any warrants issued by an Associate Judge prior to the enactment of this Act.
Part 1.7 Integrity Commission Act 2018
Clause 1.11 New section 13 (2)
This clause inserts a new definition of the term ‘associate judge’ to refer to the Master of the Supreme Court (which position is known as the Associate Judge) prior to the commencement of the repeal of Part 3 of the Supreme Court Act 1933, which provided for the Master of the Supreme Court.
The reference to the term ‘associate judge’ in section 13 (a) is retained. This clause ensures the application of the Integrity Commission Act 2018 continues to apply to Associate Judges in perpetuity.
Clause 1.12 Section 102 (2), new definition of associate judge
This clause inserts a reference to the new definition of ‘associate judge’ inserted by clause 1.11.
Part 1.8 Judicial Commissions Act 1994
This clause omits ‘or the associate judge’ from the definition of ‘head of jurisdiction’ to remove references to the Associate Judge.
Clause 1.14 Dictionary, definition of judicial officer, paragraph (b)
This clause omits ‘the associate judge of the Supreme Court; or’ from the definition of ‘judicial officer’, to remove references to the Associate Judge.
Part 1.9 Juries Regulation 2018
Clause 1.15 Schedule 1, table 1.3, item 10
This clause substitute ‘a judge or associate judge of the Supreme Court’ in Schedule 1, table 1.3, item 10. The new item 10 is ‘a judge’, removing reference to the Associate Judge as an exempt person under section 3 of the Juries Regulation 2018.
Part 1.10 Legislation Act 2001
Clause 1.16 Dictionary, part 1, definition of associate judge
This clause omits ‘associate judge’ from the Dictionary, Part 1.
Part 1.11 Ombudsman Act 1989
Clause 1.17 Section 5 (2) (b) (i)
This clause omits ‘of the Supreme Court’ from section 5 (2) (b) (i). The clause ensures the prohibition on the ombudsman to investigate action taken by an Associate Judge will continue in perpetuity.
Clause 1.18 Section 5 (8), new definition of associate judge
This clause inserts a definition of ‘associate judge’ in section 5 (8) to refer to the Associate Judge prior to the commencement of this Act.
Clause 1.19 Dictionary, note 2
This clause inserts ‘coroner’, ‘judge’ and ‘magistrate’ in the note 2 of the Dictionary.
Part 1.12 Public Sector Management Act 1994
This clause substitutes ‘the Chief Justice, a judge or the associate judge’ with ‘the Chief Justice or a judge’ in section 150 (1) (b) (i), removing reference to the Associate Judge.
This clause omits ‘associate judge’ from the section 150 (1) (b), note 1.
Part 1.13 Remuneration Tribunal Act 1995
Clause 1.22 Schedule 1, part 1.1
This clause omits ‘associate judge of the Supreme Court’ from Schedule 1, part 1.1.
Part 1.14 Road Transport (Driver Licensing) Regulation 2000
Clause 1.23 Section 12 (10), definition of judicial officer
This clause omits ‘the associate judge’ from the definition of judicial officer in section 12 (10).
Clause 1.24 Dictionary, note 2
This clause omits ‘associate judge’ from the Dictionary, note 2.
Part 1.15 Victims of Crime Act 1994
This clause substitutes ‘the Chief Justice, a judge or associate judge’ with ‘the Chief Justice or a judge’ in section 8 (1) (b) (i), removing reference to the Associate Judge.
Clause 1.26 Dictionary, note 2
This clause omits ‘associate judge’ from the Dictionary, note 2.