Bills Digest no. 65 2014–15
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Mary Anne Neilsen
Law and Bills Digest Section
4 February 2015
Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Date introduced: 27 November 2014
House: House of Representatives
Portfolio: Attorney-General
Commencement: The day after Royal Assent.
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.
The Bill amends the Federal Circuit Court of Australia Act 1999 (Federal Circuit Court Act) to confer jurisdiction on the Federal Circuit Court of Australia to hear certain tenancy disputes involving the Commonwealth and enable additional jurisdiction in relation to tenancy disputes to which the Commonwealth is a party to be conferred on the Court by delegated legislation.[1]
The Bill also makes other minor technical amendments to the Federal Court of Australia Act 1976 (Federal Court Act)[2] including:
- an amendment to clarify that police officers and court sheriffs have the power to use such force as is necessary and reasonable in the circumstances to enter premises in order to execute an arrest warrant and
- amendments to tighten provisions intended to limit appeals from minor interlocutory decisions in the federal courts.[3]
The Bill consists of two Schedules, Schedule 1 makes amendments to the Federal Court Act and Schedule 2 makes amendments to the Federal Circuit Court Act.
Federal Circuit Court of Australia
The Federal Circuit Court of Australia was established by the Federal Circuit Court Act as an independent federal court under Chapter III of the Australian Constitution. Prior to 12 April 2013, under the Federal Magistrates Act 1999, the Court was known as the Federal Magistrates Court and its judicial officers as federal magistrates. The change to the name of the court and its judges that occurred in 2013 was felt to be warranted to reflect the evolving role of the Court and its importance in the federal judicial system.[4]
The jurisdiction of the Court has grown since its inception and includes family law and child support and the following areas of general federal law: administrative law, admiralty law, bankruptcy, consumer law (formerly trade practices), copyright, human rights, industrial law, migration and privacy. The Court shares these jurisdictions with the Family Court of Australia (in respect of family law and child support) and the Federal Court (in respect of general federal law).[5]
The objective of the Federal Circuit Court is to provide a simple and more accessible alternative to litigation in the Family Court and the Federal Court and to relieve the workload of the superior federal courts. The provisions of the Federal Circuit Court Act enable the Court to operate as informally as possible in the exercise of judicial power, use streamlined procedures and make use of a range of dispute resolution processes to resolve matters without judicial decisions.[6] The Court sits in all capital cities, selected major regional centres and circuits to a number of regional locations.
The amendments contained in Schedule 2 of the Bill would extend the jurisdiction of the Federal Circuit Court to include certain tenancy disputes involving the Commonwealth.
The Bill has not been referred to a committee for inquiry.[7]
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) has examined the Bill and raised questions regarding the appropriate use of delegated legislation.[8] The Committee comments are considered below under the relevant provisions.
The Shadow Attorney-General Mark Dreyfus, in his second reading speech in the House of Representatives said that Labor supports the Bill, ‘which will make a number of minor but worthy improvements to our federal court system’.[9]
There appears to be no publicised comment on the Bill.
The Explanatory Memorandum states that the Bill is expected to generate an approximate saving of $0.2 million by introducing efficiencies and reducing costs to tenants involved in Commonwealth tenancy disputes.[10]
The Government’s explanatory materials to the Bill give no indication on whether the expanded jurisdiction of the Federal Circuit Court will adversely impact on the work and resources of the Court.
As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[11]
The Parliamentary Joint Committee on Human Rights final report for 2014 states that the Committee had deferred its consideration of the Bill.[12]
Schedule 1—Federal Court of Australia Act 1976
Execution of arrests and warrants
The Federal Court Rules 2011 have provisions on powers to arrest, made under section 59 of the Federal Court Act.[13] There are various rules regarding the power of arrest and arrest warrants but as the Explanatory Memorandum explains, a strict reading of these rules would suggest there is uncertainty about whether a power of entry into premises exists, for the purposes of executing an arrest warrant.[14] This means that without amendment, ‘circumstances can arise where an arrest warrant is unable to be executed because an arrestee is inside premises. This can delay Court processes and burden the justice system.’[15]
Item 10 of Schedule 1 of the Bill provides this amendment. It amends the Federal Court Act to provide an arrester, (that is a court sheriff, deputy court sheriff, or a police officer)[16] with the power to use such force as is necessary and reasonable in the circumstances to enter premises in order to execute an arrest warrant. Force to enter premises can only be used if an arrester reasonably believes the arrestee is on the premises (proposed subsection 55A(2)). There are various limits on this power as set out in proposed subsections 55A(3) to 55A(7). For example the power to enter a dwelling house between 9 pm one day and 6 am the next day is limited to circumstances where the arrester reasonably believes that it would not be practicable to make the arrest there or elsewhere at another time (proposed subsection 55A(3)). Proposed subsection 55A(4) provides that in the course of arresting the arrestee, the arrester must not use more force, or subject the arrestee to greater indignity than is necessary and reasonable to make the arrest or prevent the arrestee’s escape. In addition, the arrester must not do anything that is likely to cause the death of, or grievous bodily harm to, the arrestee unless the arrester reasonably believes that doing that thing is necessary to protect the life or prevent serious injury to another person (including the arrester).
The Senate Scrutiny of Bills Committee examined item 10 noting that the approach taken to the safeguards that apply to the use of force in subsection 55A(4) is consistent with the Guide to Framing of Commonwealth Offences, Infringement Notices and Enforcement Powers and the general provisions in Part IAA, Division 4 of the Crimes Act 1914. The Committee therefore made no further comment on this item.[17]
Tenancy disputes
The Explanatory Memorandum explains the rationale for the amendments that confer jurisdiction on the Federal Circuit Court to hear certain tenancy disputes noting:
Currently, in most jurisdictions, the applicable law provides for resolution of tenancy disputes in a state or territory tribunal, which can lead to inconsistency of approach.[18] Commonwealth tenancy disputes may also be resolved in some cases through the Federal Court of Australia, or possibly a superior state court. However, this is a time consuming and expensive exercise, and an inappropriate use of superior court and Commonwealth resources. A more appropriate approach is to confer the relevant jurisdiction on the Federal Circuit Court as the lowest and least expensive Commonwealth court. [19]
Item 4, Schedule 2 of the Bill inserts proposed section 10AA, which confers jurisdiction on the Federal Circuit Court in relation to specified Commonwealth tenancy disputes. A ‘Commonwealth tenancy dispute’ is defined as a matter:
- involving a lease, licence or other arrangement to possess, occupy or use land and a dispute about:
– the recovery of rent or other payments payable under or in relation to the lease, licence or other arrangement or
– the termination of the lease, licence or other arrangement or
– the possession, occupation or use of the land and
- in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party (inserted into section 5, item 1, Schedule 2).
Proposed subsection 10AA(1) provides that the Federal Circuit Court of Australia has jurisdiction in relation to a Commonwealth tenancy dispute between the parties to a lease, licence or other arrangement in circumstances where:
- the lessor, licensor, or the grantor of a right to possess, occupy or use land owned by the Commonwealth, is the Commonwealth, or a person suing or being sued on behalf of the Commonwealth and
- the lessee, licensee or grantee, is a person other than the Commonwealth, a person suing or being sued on behalf of the Commonwealth, or a Commonwealth officer or employee.[20]
Proposed subsection 10AA(2) provides that the Minister may, by legislative instrument, confer additional jurisdiction on the Federal Circuit Court in relation to any other specified Commonwealth tenancy dispute. The Explanatory Memorandum states that this approach ‘aims to reduce the burden of making future legislative amendments to the Federal Circuit Court Act if it is considered appropriate for the Federal Circuit Court to have jurisdiction to determine additional Commonwealth tenancy disputes...’[21]
Proposed subsection 10AA(3) provides that the Minister may, by legislative instrument, make provision for and in relation to all or any of the following matters in respect of a Commonwealth tenancy dispute:
- the rights of the parties
- the applicable law and any modifications to that law
- the powers the Federal Circuit Court may exercise under the applicable law
- the powers that may be exercised when executing Federal Circuit Court orders in relation to these disputes.
The Explanatory Memorandum states that this ‘aims to ensure, as far as possible, that the rights of the parties to the Commonwealth tenancy dispute are not substantially different from the rights of parties to tenancy disputes’ by enabling the Minister to ‘flexibly respond to particular issues in relation to particular state or territory regimes which might arise in the context of conferral of jurisdiction on a federal court’.[22]
The Senate Scrutiny of Bills Committee raised questions about whether the use of legislative instrument by the Minister as set out in proposed subsections 10AA(2) and 10A(3) would be an appropriate use of delegated legislation. The Committee noted that the conferral of jurisdiction on federal courts and the modification of such jurisdiction are matters of considerable importance and thus may be more appropriately dealt with in primary legislation. As the Committee also noted, these matters may raise complex legal issues.[23]
The Committee therefore has sought advice from the Attorney-General in relation to ‘the rationale for providing for the implementation of these important matters in delegated legislation (beyond the aim of “reducing the burden of making future legislative amendments”)’. The Committee also asked that if the Government is not intending that these matters be dealt with in primary legislation—‘whether the Bill can be amended to ensure that these matters are dealt with in regulations (rather than legislative instruments) as this would ensure that the regulations relating to these important (and potentially complex) matters are drafted by the OPC [Office of Parliamentary Counsel] and considered by the Federal Executive Council.’[24]
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.
[1]. Federal Circuit Court of Australia Act 1999, accessed 29 January 2015.
[2]. Federal Court of Australia Act 1976, accessed 29 January 2015.
[3]. See items 2–7 of Schedule 1 of the Bill. Note that these items are not dealt with in the Bills Digest and are fully explained at pages 7–11 of the Explanatory Memorandum to the Bill.
[4]. M Dreyfus, ‘Second reading speech: Federal Courts Legislation Amendment Bill 2014’, House of Representatives, Debates, 2 December 2014, p. 13945, accessed 5 January 2015.
[5]. Federal Circuit Court of Australia, Annual report 2013–2014, Federal Circuit Court of Australia, Canberra, 2014, p. 24, accessed 6 January 2015.
[6]. Ibid.
[7]. Senate Selection of Bills Committee, Report No. 16 of 2014, The Senate, 4 December 2014, p. 3, accessed 5 January 2015.
[8]. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 17 of 2014, The Senate, 3 December 2014, pp. 5–7, accessed 5 January 2015.
[9]. M Dreyfus, ‘Second reading speech: Federal Courts Legislation Amendment Bill 2014’, op. cit.
[10]. Explanatory Memorandum, Federal Courts Legislation Amendment Bill 2014, p. 2, accessed 20 January 2015.
[11]. The Statement of Compatibility with Human Rights can be found at pages 3–6 of the Explanatory Memorandum to the Bill.
[12]. Parliamentary Joint Committee on Human Rights, Seventeenth report of the 44th Parliament, The Senate, December 2014, p. 9, accessed 5 January 2015.
[13]. Federal Court Rules 2011, ComLaw website, accessed 12 January 2015.
[14]. For example: failure to appear on the required date as part of an offence allows the applicant to apply to the Court for the issue of a Form 90 warrant for the respondent’s arrest (rule 34.14); failure to attend Court in response to a subpoena or order allows a party to apply to the Court for a warrant for a person’s arrest and detention in custody until the person is brought before the Court and for that person’s production before the Court (rule 41.05); and there are also powers to issue a warrant for arrest of a person who has acted in contempt of court (rules 42.01; 42.14).
[15]. Explanatory Memorandum, op. cit., p. 3.
[16]. Defined in proposed subsection 55A(1).
[17]. Senate Standing Committee for the Scrutiny of Bills, op. cit., pp. 5–6.
[18]. For example in New South Wales, the NSW Civil and Administrative Tribunal can hear and determine tenancy matters under the Residential Tenancies Act 2010.
[19]. Explanatory Memorandum, op. cit., p. 17.
[20]. Note that where the parties are sublessors, sublicensors, sublessees, and sublicensees, the Federal Circuit Court does not have jurisdiction under this provision.
[21]. Ibid., p. 17.
[22]. Explanatory Memorandum, op. cit., p. 17.
[23]. Senate Standing Committee for the Scrutiny of Bills, op cit., p. 6.
[24]. Ibid., pp. 6–7.
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