1.1
On 24 June 2021, on a recommendation of the Senate Standing Committee for Selection of Bills (selection of bills committee), the Senate referred the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 (the bill) to the Senate Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 13 August 2021.
1.2
The selection of bills committee recommended the referral on the basis that it is a 'complex bill on an important matter of public policy'.
Conduct of the inquiry
1.3
In accordance with usual practice, the inquiry was advertised on the committee's webpage. The committee called for submissions by 15 July 2021 and wrote to a range of stakeholders inviting them to submit.
1.4
The committee received nine submissions, listed at Appendix 1.
1.5
The committee thanks submitters for their contributions to this inquiry.
Background and purpose of the bill
1.6
The bill proposes to make administrative amendments to the following Acts in order to improve their operation and clarity:
(a)
Administrative Appeals Tribunal Act 1975 (AAT Act);
(b)
Admiralty Act 1988 (Admiralty Act);
(c)
A New Tax System (Family Assistance) (Administration) Act 1999 (ANTS (Family Assistance) (Administration) Act);
(d)
Child Support (Registration and Collection) Act 1988 (Child Support Act);
(e)
Commonwealth Electoral Act 1918 (Commonwealth Electoral Act);
(f)
Family Law Act 1975 (Family Law Act);
(g)
Federal Circuit and Family Court of Australia Act 2021 (Federal Circuit and Family Court of Australia Act);
(h)
Federal Circuit Court of Australia Act 1999 (Federal Circuit Court of Australia Act);
(i)
Federal Court of Australia Act 1976 (Federal Court of Australia Act);
(j)
Foreign Judgments Act 1901 (Foreign Judgments Act);
(k)
Foreign States Immunities Act 1985 (FSI Act);
(l)
International Arbitration Act 1974 (Arbitration Act);
(m)
Judiciary Act 1903 (Judiciary Act)
(n)
Military Rehabilitation and Compensation Act 2004 (MRC Act);
(o)
Nauru (High Court Appeals) Act 1976 (Nauru (High Court) Appeals Act);
(p)
Paid Parental Leave Act 2010 (Paid Parental Leave Act); and
(q)
Social Security (Administration) Act 1999 (Social Security (Administration) Act).
1.7
These amendments are contained in three schedules:
Schedule 1 – Main Amendments;
Schedule 2 – Remote Hearing Arrangements; and
Amendments relating to the Administrative Appeals Tribunal (AAT)
Amendments to the AAT Act
1.8
The explanatory memorandum describes that the proposed amendments to the AAT Act arise out of recommendations of a 2018 statutory review of the Tribunals Amalgamation Act 2015 by the Hon Ian Callinan AC (the statutory review). In particular, the bill would:
Remove the requirement to obtain consent from an agency party to proceedings before the Social Services and Child Support Division (SSCSD) in order for a review to be conducted 'on the papers'.
Amend section 39 of the AAT Act to extend the procedural fairness requirements of that provision to non-agency parties in the SSCSD. The existing procedural fairness provisions would continue to apply to agency parties on the basis that non-agency parties 'do not generally participate in AAT first reviews'.
Provide that the President of the AAT may direct that a proceeding, or any part of it or matter arising out of it, be referred to conferencing as part of an alternative dispute resolution process.
Allow for more than one Judge to sit on a multi-member panel constituted for the purposes of a proceeding.
Clarify that the President must consult with members on a panel 'where it is reasonably practical to do so' prior to issuing a direction to reconstitute it.
Empower authorised officers to dismiss applications for review to the SSCSD where the officer is satisfied that the decision is not reviewable by the AAT.
Clarify that obvious errors in the text of the decision can be corrected by the member who heard or presided over the relevant proceeding, or in the absence of that member, the President or authorised member.
Require that the minister, as opposed to the Governor-General, form an opinion as to whether a person has special knowledge or skills relevant to the duties of a Deputy President, a senior member or other member for the purposes of the AAT.
Impose a 12 month time limit on the period for which a person can be appointed to act as a Deputy President or a member (other than the President).
Empower the Registrar to limit a person's appointment as an officer to specified decisions, proceedings, functions or powers. The bill would also introduce a similar power for the President with respect to AAT officers and members.
Clarify that the AAT may only tax costs where it has ordered that costs be paid.
Extend the statutory immunity currently afforded to members under the AAT Act to Reviewers who sit on the Immigration Assessment Authority.
Amendments to other legislation relating to the operations of the AAT
1.9
In addition, the bill contains a number of amendments to other Acts that would affect the operation of the AAT, as follows:
The bill proposes amendments to the ANTS (Family Assistance) (Administration) Act, Child Support Act, Paid Parental Leave Act, and the Social Security (Administration) Act to standardise powers to issue summonses to require persons to give evidence or produce documents across all divisions of the AAT. These amendments would repeal existing provisions in these Acts relating to these powers and apply the relevant provisions of the AAT Act.
Further amendments to the Child Support Act would clarify that, when the AAT reviews child support decisions about the percentage of care for a child, each parent or non-parent carer is able to apply for review of the decision and is automatically a party to the review.
Amendments to the Commonwealth Electoral Act 1918 are consequential upon amendments to the AAT Act identified in paragraph here above. Should those amendments be passed, the bill would then repeal section 141(6A) which would be rendered unnecessary.
The bill would amend the MRC Act to provide that a claimant is automatically a party to an application to the AAT made by the Chief of the Defence Force or the Military Rehabilitation and Compensation Commission for review of a decision of the Veterans' Review Board.
Amendments to the Admiralty Act 1988
1.10
Under the bill, the Admiralty Rules 1988 (Admiralty Rules) would become rules of the court within the federal court system and their status would align with that of other rules of federal courts. The bill would:
(a)
apply the Legislation Act 2003 to the Admiralty Act 1988 to align its application to the Admiralty Rules 1988 with its application to other rules of the federal courts
(b)
apply these proposed amendments to rules made on or after the commencement of these changes, including rules in force immediately before commencement, and
(c)
declare the Admiralty Rules to be rules of court for the avoidance of doubt.
1.11
The bill states that further modifications or adaptations to the application of the Legislation Act 2003 (Legislation Act) to the Admiralty Rules may be prescribed by regulations.
Amendments to legislation governing Commonwealth courts
1.12
The bill would amend the Family Law Act, to clarify that a person appearing at a proceeding by way of video link, audio link or by other means is taken to be 'present in court'. The bill includes additional amendments to the Family Law Act, Federal Circuit Court of Australia Act (and as of 1 September 2021, the Federal Circuit and Family Court of Australia Act), and the Federal Court Act to include proceedings broadcast by video link, audio link or other means within the meaning of 'open court', as well as proceedings conducted by these means within the meaning of a 'sitting of the Court'.
1.13
The bill would also amend the Federal Court of Australia Act to enable the Federal Court to provide short form reasons in its appellate jurisdiction in civil proceedings where a decision dismissing an appeal does not raise any questions of general principle.
Amendments to the Judiciary Act 1903
1.14
Amendments to the Judiciary Act would align language used to describe consideration of matters 'other than in open court'. The use of this language, as opposed to 'in Chambers' is consistent with the terminology used by the High Court of Australia (High Court).
1.15
The bill would also amend the Judiciary Act to enhance consistency with the High Court Rules 2004, and clarify the power of the Court to prescribe forms other than in the Rules of Court.
1.16
The bill would amend section 79 of the Judiciary Act to clarify that a court shall be taken to be exercising federal jurisdiction in a proceeding in the state or territory in which the proceeding was commenced.
Amendments to the Foreign States Immunities Act 1985
1.17
The proposed amendments to the FSI Act follow the High Court's decision in Firebird Global Master Fun II Ltd v Republic of Nauru (2015) 258 CLR 31 (Firebird). In that case, the High Court considered the application of section 27 of the FSI Act to ex parte proceedings. That section prevents a 'judgment in default of appearance' from being entered against a foreign government unless the FSI Act's service requirements have been complied with, and the court is satisfied that there are no immunities that apply. In its decision, the Court distinguished between a 'judgment in default of appearance' and ex parte proceedings, including the registration of a foreign judgment. For that reason, the Court held that there had been no default and the provisions of the FSI Act did not apply.
1.18
The bill would insert section 26A to explicitly preclude an Australian court from entering a final judgment (as opposed to an interlocutory judgment) against a foreign state in ex parte proceedings. The explanatory memorandum states that this would 'ensure that foreign States are afforded appropriate procedural immunities', and prevents an Australian court from registering a foreign judgment against a foreign State where there is an obligation to afford State immunity under customary international law.
1.19
The explanatory memorandum notes that these amendments would not apply to a separate entity of a foreign government, which would be treated in the same way as a foreign corporation. Proposed section 26A would potentially allow for an interlocutory judgment to be entered against a foreign corporation on an ex parte basis. In such circumstances, the explanatory memorandum explains that:
The effect of section 26A is that it provides the Australian court seized of the matter with the discretion to determine whether a particular proceeding should be conducted on an ex parte basis.
1.20
The bill would make a number of further amendments to the FSI Act to clarify that the scope of section 27 includes orders for the registration of a foreign judgment, or recognition or enforcement of a foreign award.
Amendment to the International Arbitration Act 1974
1.21
The bill would amend the Arbitration Act to identify that the FSI Act is the appropriate regime for regulating enforcement of a foreign award, against a foreign State, or a separate entity of a foreign State under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the International Centre for Settlement of Investment Disputes Convention.
Repeal of the Nauru (High Court Appeals) Act 1976
1.22
The bill would repeal the Nauru (High Court Appeals) Act which gave effect to the agreement between the Government of Australia and the Government of the Republic of Nauru relating to appeals to the High Court from the Supreme Court of Nauru. It provided for appeals to the High Court from certain classes of decisions of the Supreme Court of Nauru. This agreement was terminated on 13 March 2018 following the Government of Nauru providing formal notification of its intention to withdraw on 12 December 2017. The amendments remove the ability to hear appeals from the Supreme Court of Nauru in the High Court.
Consideration by other parliamentary committees
1.23
The Parliamentary Joint Committee on Human Rights offered no comment on the bill.
1.24
The Senate Standing Committee for the Scrutiny of Bills (the scrutiny committee) raised concerns that the proposed amendments to the Admiralty Act would enable delegated legislation to modify the application of primary legislation. The scrutiny committee explained that such clauses 'impact upon the level of parliamentary scrutiny and may subvert the appropriate relationship between the Parliament and the executive, impacting upon Parliament's constitutional role as lawmaker-in-chief'. In that context, the committee sought the Attorney-General's advice on 'why it is considered necessary and appropriate to allow delegated legislation to modify the operation of the Legislation Act 2003 as it applies to the Admiralty Rules 1988'.
1.25
In response, the Attorney-General advised that the proposed amendments to the Admiralty Act would provide that the Admiralty Rules 'are dealt with in the same way as other federal rules of court, including by being registered and published'. The Attorney-General pointed to equivalent provisions in the Federal Court of Australia Act 1976, Federal Circuit Court Act 1999, Family Law Act 1975 and the Judiciary Act 1903 relating to the creation of federal court rules.
1.26
The Attorney-General explained that 'these amendments will not allow any modification to, or affect the operation of, the parliamentary scrutiny provisions in the Legislation Act 2003 in respect of the Admiralty Rules'. She stated that:
proposed paragraph 41(5)(b) expressly limits the power to make regulations modifying the application of Part 2 of Chapter 3 of the Legislation Act 2003 to the Admiralty Rules, thereby ensuring Parliamentary scrutiny remains in place.
1.27
In light of these concerns, the Attorney-General advised that her department would table an addendum to the explanatory memorandum that identifies that proposed paragraph 41(5)(b) 'is not intended to allow for modifications to the application of relevant Parliamentary scrutiny provisions to the Admiralty Rules'.
1.28
'[I]n light of the information provided and the Attorney-General's undertaking', the scrutiny committee made no further comment on this matter.
Key issues raised in evidence
1.29
Submitters to the inquiry raised concerns with the following aspects of the bill:
increased ministerial power in relation to appointments to the AAT;
the proposed immunity for Immigration Assessment Authority (IAA) Reviewers;
short form reasons in the Federal Court's appellate jurisdiction;
the need for proposed amendments to the FSI Act; and
the application of the 'open court' principle.
Increased ministerial power
1.30
The Asylum Seeker Resource Centre (ASRC), Law Institute of Victoria (LIV) and Josephite Justice Office raised concerns about the proposed amendments to the appointment process for AAT members, including Senior Members and the Deputy President.
1.31
The ASRC opposed the removal of the Governor-General's role in the appointment process. It argued that vesting the power in the minister would give the minister 'exclusive power to appoint someone who is otherwise not qualified for the crucial roles of Deputy President, Senior Member and Member of the AAT'.
1.32
The LIV echoed this sentiment, submitting that 'this will further undermine the independence of the appointment process and unnecessarily increase ministerial power…[and] will further remove transparency'. It emphasised that 'there needs to be a perception of separation of powers in order to maintain public confidence in the integrity and independence of the Tribunal review system'.
1.33
Similarly, the Josephite Justice Office emphasised that 'the AAT was established as an independent statutory body to review Ministerial decisions'. On this basis, it submitted, 'it is totally inappropriate for the Minister to be given direct and, we believe, unwarranted and unjustifiable power over this body'.
1.34
The Law Council of Australia expressed support for the proposed reforms to the AAT in a general sense, and acknowledged the purpose of the reforms as an initial step in implementing the recommendations of the statutory review undertaken by the Hon Ian Callinan AC.
1.35
The AAT also supported the proposed amendments. It stated that the proposed amendments in relation to the appointment of members would 'provide flexibility' and 'contribute to increased certainty in relation to the AAT's operations and enhance the Tribunal's ability to manage applications effectively and efficiently'.
1.36
The Attorney-General's Department submitted that the amendments would 'allow the AAT to work with greater flexibility to achieve efficiencies in the management of its caseload, and provide for greater harmonisation of powers'. Further, the explanatory memorandum states that the latest legislative drafting directions require that:
legislation which requires the Governor-General to form an opinion or do an activity should be updated to ensure that the opinion or activity is conferred on the Minister and not the Governor-General.
Proposed immunity for Immigration Assessment Authority (IAA) Reviewers
1.37
Some submitters raised concerns about immunity for IAA reviewers. The LIV considered this protection unnecessary on the basis there are differences between the positions of an IAA Reviewer and an AAT Member. In support of this position, it highlighted that IAA Reviewers are engaged by the Public Service Act 1999, pointed to differences in qualifications and other requirements to hold office, and highlighted the differentiated nature of IAA reviews, which are conducted 'on the papers' and do not require the Reviewers to afford applicants procedural fairness. The LIV expressed concern that in seeking to remove personal liability for IAA members, this could 'reduce scrutiny and oversight of the IAA without adequate justification or consideration of the appropriateness of the proposed immunity'.
1.38
The ASRC held a similar view, stating that the amendments:
would reduce the already low level of accountability of the IAA by preventing aggrieved persons from bringing legal actions against reviewers of the IAA for public misfeasance, even where they have acted in bad faith.
1.39
The Josephite Justice Office submitted that IAA reviews are designed to be efficient and free from bias. It stated, '[w]e believe that these employees need to be accountable and liable for the performance of their duties, as are other public servants'.
1.40
The explanatory memorandum explains that the IAA 'is a separate office within the AAT's Migration and Refugee Division and consists of the President of the AAT, the Division Head of the Migration and Refugee Division, the Senior Reviewers and the Reviewers'. The AAT and the Department of Home Affairs supported the provision's intent to:
ensure that they have the same protection and immunity that is available to members and staff of the AAT exercising statutory functions in relation to the review of decisions on the merits.
Short form reasons in the Federal Court's appellate jurisdiction
1.41
Submissions discussed the possible impact of allowing the Federal Court to provide reasons in short form for dismissals of applications in the appellate jurisdiction.
1.42
For example, the ASRC submitted that the effect of this provision 'would mean that appellants would not receive a judgement containing proper reasons, addressing the grounds raised, when their cases are dismissed'. It stated that the absence of a proper judgment with reasons 'would make it virtually impossible for the appellant to then exercise their legal right to seek further appeal of their case to either the Full Federal Court or the High Court'. Therefore, in its view, the measure could reduce the number of migration appeals to higher courts. The ASRC emphasised the particular disadvantage that this amendment may have on self-represented litigants, which it suggested were largely engaged in migration matters.
1.43
This view was shared by the Josephite Justice Office and the LIV. The latter considered reasons particularly important in the administrative law practice area, and posited that 'the use of short-form decisions…may undermine public confidence and the notion that justice needs to be seen to be done'.
1.44
The Attorney-General's Department explained that this amendment would 'produce significant efficiencies in the Federal Court's management of appeals in civil proceedings'. It stated that this practice would reflect similar practices in place in the High Court, the Family Court and the NSW Court of Appeal. The Attorney-General's Department argued that the amendment would 'reduce delays in the Federal Court's hearing of matters without limiting the Court's ability to provide comprehensive reasons when required'.
Need for proposed amendments to the Foreign States Immunities Act 1985
1.45
Mr Michael Douglas, Senior Lecturer at the University of Western Australia Law School suggested that 'the proposed amendment to provide foreign States with immunity in ex parte proceedings to register a foreign judgment is unnecessary'. He suggested that:
the only circumstances in which these proposed amendments will have teeth is where a judgment creditor seeks to register a foreign judgment against a foreign State in an Australian Court. In those circumstances, the foreign court that produced the foreign judgment should have already considered the requirements of customary international law. To second guess the foreign court's disposition to the judgment debtor-State's immunity (or rather, lack thereof) may be contrary to the comity that informs the limited exceptions to the enforceability of a registrable foreign judgment.
Application of the 'open court' principle
1.46
Dr Niamh Kinchin, Senior Lecturer at the University of Wollongong School of Law, cautioned that conducting hearings via videoconference could risk infringements to the 'open court' principle established under the common law. She pointed to lesser access for public and professional observers, potential technological failures and lack of access to the requisite skills and equipment as factors that may impinge upon broad-scale open justice. Dr Kinchin observed that these factors are ones to be managed by courts.
1.47
Dr Kinchin also identified a potential intersection between the bill's proposal to enunciate that the jurisdiction of the court exercised by way of video link, audio link or other means and the independence of the judiciary under Chapter III of the Constitution. She submitted:
In declaring that the jurisdiction of a court is exercised in open court where its exercise is made accessible to the public by way of video link, audio link or other appropriate means, the legislature identifies some of the characteristics of an open court. Accordingly, the validity of the law depends on the opinion of the law-maker that an ‘open court' includes remote hearings. Although it is the legislature's role to enact laws, it is the role of the judiciary to conclusively determine the constitutional validity of those laws. There is a possibility that the proposed legislation (if challenged) may be found to breach the separation of judicial power as established by Chapter III of the Constitution, and confirmed in the Communist Party Case. The legislature may be found to be trying to ‘recite itself into power' by defining a constitutional principle and as a consequence, proclaiming the constitutional validity of the law.
1.48
The Law Council described these amendments as 'minor' and expressed its support for them.
1.49
The Attorney-General's Department submitted that 'the proposed amendments are necessary to put beyond doubt any potential for inconsistency with the open court requirement…in a remote hearings context'. It stated:
The amendments are retrospective to eliminate any potential uncertainty about whether the courts' remote hearings practices are consistent with the enabling legislation.
Further, the federal courts recognise that rapid advances in the courts' remote access technology and the willingness of judges, the profession and other participants to adapt, and adopt changes, is an opportunity for the community, the legal system and the legal profession. As such, the federal courts have expressed the view that remote hearings should continue to be considered and used, where appropriate. These amendments ensure that the federal courts can continue to respond proactively to technological changes to ensure that all Australians can access the Australian federal courts.
Committee view
1.50
The committee recognises that the bill seeks to improve administrative processes in federal courts and tribunals. It understands that the bill will be followed by additional measures to further implement the recommendations of the statutory review undertaken by the Hon Ian Callinan AC.
1.51
The committee acknowledges the concerns raised by some submitters about certain aspects of the bill. However, the committee is of the view that the amendments proposed seek to facilitate improved outcomes for the operation of federal courts and tribunals and are largely administrative in nature.
1.52
The committee recommends that the Senate passes the bill.
Senator the Hon Sarah Henderson
Chair