CHAPTER 1


CHAPTER 1

Introduction

Referral of inquiry

1.1        On 25 November 2011, the Senate referred the provisions of the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 (Bill) to the Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 22 March 2012.[1] The Senate subsequently extended the reporting date until 29 March 2012.[2]

Overview of the Bill

1.2        In his Second Reading Speech, the former Minister for Justice (Minister), the Hon Brendan O'Connor MP, explained that the Bill marks the Australian Government's latest tranche of reforms designed to 'facilitate access to justice' in the Australian legal system.[3]

1.3        The Bill has five Schedules, and contains provisions to:

  • enhance the Federal Court's powers in relation to discovery, following the Australian Law Reform Commission's March 2011 report, Managing Discovery: Discovery of documents in Federal Courts[4] (Schedule 1);
  • implement in all four federal courts the model bill of the Standing Committee of Attorneys-General (SCAG)[5] concerning suppression orders and non-publication orders (Schedule 2);
  • implement in all four federal courts the SCAG model bill concerning vexatious proceedings (Schedule 3);
  • align the jurisdictional limit for matters heard by Family Law Magistrates in Western Australia with that of Federal Magistrates in the Federal Magistrates Court in other states and territories (Schedule 4); and
  • give the Administrative Appeals Tribunal more flexibility when dealing with the payment of fees (Schedule 5).[6]

1.4        The Explanatory Memorandum (EM) sets out the provisions of the Bill in detail.

1.5        Submissions and witnesses to the committee's inquiry raised concerns in relation to Schedules 2, 3 and 4 of the Bill. The amendments in Schedule 1 (Discovery Powers) and Schedule 5 (AAT Fees) were supported by the organisations that commented on those aspects of the Bill.[7]

1.6        For this reason, the committee's report considers only Schedules 2, 3 and 4 of the Bill.

Background

Suppression and non-publication orders

1.7        Schedule 2 of the Bill implements model legislation developed by SCAG on suppression and non-publication orders in the High Court, the Federal Court, the Family Court and the Federal Magistrates Court.

1.8        In his Second Reading Speech, the Minister stated that there has been criticism of the volume and breadth of suppression orders granted by some state courts. As a result of these concerns, in 2010 after extensive consultation, SCAG developed model legislation on suppression orders.[8] In May 2010, SCAG Ministers endorsed the model legislation and agreed to consider implementing it in their jurisdictions.[9]

1.9        The EM notes that federal courts already have existing powers to make suppression and non-publication orders:

However, the legislation supporting those powers is fragmented and varies in detail. Implementation of the Bill will ensure a more comprehensive legislative regime that clearly sets out the circumstances in which suppression orders and non-publication orders can be made, what information they can cover and what details those orders should contain. The Bill will also assist in achieving greater uniformity across Australia of the laws relating to suppression orders and non-publication orders, making it easier to understand in what circumstances such orders can be made and what they must contain.[10]

Vexatious proceedings orders

1.10      Schedule 3 of the Bill amends the Federal Court of Australia Act 1976 (Federal Court Act), the Family Law Act 1975 (Family Law Act), the Federal Magistrates Act 1999 (Federal Magistrates Act) and the Judiciary Act 1903 (Judiciary Act) to implement the SCAG model bill for dealing with vexatious proceedings.

1.11      The EM states that the purpose of the model law is to harmonise laws dealing with vexatious proceedings across Australia:

This is expected to discourage vexatious litigants from forum shopping, curtail vexatious litigants acting in concert with other vexatious litigants from other jurisdictions and enable similar results [and] consequences between jurisdictions from the making of vexatious proceedings orders.[11]

1.12      Legislation based on the SCAG model law has been enacted in Queensland, the Northern Territory and New South Wales.[12]

1.13      The EM notes that federal courts already have power to deal with vexatious proceedings, however:

...there is limited legislative authority to support the exercise of that power, with provisions mainly currently being contained under court rules, and varying in detail. Implementation of the Bill will ensure a more comprehensive legislative regime that clearly sets out the circumstances in which vexatious proceedings orders can be made and the kinds of orders that can be made, without affecting the courts' other powers.[13]

Transfer of proceedings from courts of summary jurisdiction

1.14      Schedule 4 of the Bill contains provisions to amend the Family Law Act to align the jurisdictional limits for matters heard by Family Law Magistrates in Western Australia with that of Federal Magistrates in the Federal Magistrates Court in other states and territories.[14]

1.15      The EM explains the purpose of these amendments is to provide the Family Court of Western Australia with greater flexibility to allocate work between judges and magistrates, and achieve national consistency.[15]

Conduct of the inquiry

1.16      The committee advertised the inquiry in The Australian on 7 December 2011. Details of the inquiry, including links to the Bill and associated documents, were placed on the committee's website at www.aph.gov.au/senate_legalcon. The committee also wrote to a number of organisations and individuals, inviting submissions by 31 January 2012. Submissions continued to be accepted after that date.

1.17      The committee received seven submissions, which are listed at Appendix 1. All submissions were published on the committee's website.

1.18      The committee held a public hearing on 1 March 2012 at Parliament House in Canberra. A list of witnesses who appeared at the hearing is at Appendix 2, and the Hansard transcript is available through the committee's website.

Acknowledgement

1.19      The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1.20      References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

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