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Australian Law Reform Commission the Judicial Power of The Australian Law Reform Commission Discussion Paper 64 The judicial power of the Commonwealth A review of the Judiciary Act 1903 and related legislation You are invited to make a submission or comment on this Discussion Paper DP 64 December 2000 How to make comments or submissions You are invited to make comments or submissions on the issues raised in this Paper, which should be sent to The Secretary Australian Law Reform Commission Level 10, 131 York Street SYDNEY NSW 2000 (GPO Box 3708 SYDNEY NSW 1044) Phone: (02) 9284 6333 TTY: (02) 9284 6379 Fax: (02) 9284 6363 E-mail: [email protected] ALRC homepage: http://www.alrc.gov.au Closing date: 16 March 2001 It would be helpful if comments addressed specific issues or paragraphs in the Paper. Confidentiality Unless a submission is marked confidential, it will be made available to any person or organisation on request. If you want your submission, or any part of it, to be treated as confidential, please indicate this clearly. A request for access to a submission marked ‘confidential’ will be determined in accordance with the Freedom of Information Act 1982 (Cth). The Commission will include in its final report on this project a list of submissions received in response to this Paper. It may also refer to those submissions in the text of the report and other Commission publications. It may decide to publish them. If you do not want your submission or any part of it to be used in any one of these ways please indicate this clearly. © Commonwealth of Australia 2000 This work is copyright. It may be reproduced in whole or in part for ALRC public consultations, study or training purposes subject to the inclusion of an acknowledgment of the source and no commercial usage or sale. Reproduction, for purposes other than those indicated above, requires the written permission of AusInfo. Requests and inquiries concerning reproduction and rights should be addressed to the Copyright Officer, AusInfo, GPO Box 1920, Canberra City ACT 2601. ALRC reference: ALRC DP 64 ISBN: 0642 70502 X Contents page Terms of reference 5 Participants 9 Abbreviations 11 1. Introduction Why review the Judiciary Act? 13 The terms of reference 14 Related studies 16 The federal judicial system 19 Underlying issues 23 Overview of this paper 28 The process of reform 32 How you can help 32 2. Allocating original federal jurisdiction between federal and state courts Introduction 33 Underlying policies 34 Original jurisdiction of the High Court 43 Original jurisdiction of the Federal Court 68 Original jurisdiction of the Family Court 88 State courts exercising federal jurisdiction 89 3. Transfer of proceedings between and within courts Introduction 119 Transfers within a court: change of venue 122 Transfers within a court: single judge to full court 132 Transfers between courts: cases stated and questions reserved 149 Transfers between courts: remittal from a higher court to a lower court 152 Transfers between courts: removal from a lower court to a higher court 166 Notice and intervention in constitutional cases 175 Transfers between courts: the Federal Magistrates Court 183 Related mechanisms 184 2 The judicial power of the Commonwealth 4. Appellate jurisdiction of federal courts Introduction 193 Constitutional framework 199 Avenues of appeal 204 Cross-jurisdictional appeals 213 Access to a first appeal 218 Access to a second appeal — the High Court and special leave to appeal 242 Access to a second appeal — the Family Court exception to the High Court’s special leave requirement 257 The structure of intermediate appellate courts 268 The composition of intermediate appellate courts 272 A national appellate court? 277 5. Claims against the Commonwealth Introduction 286 History and policies 289 Constitutional background 306 Immunity from being sued 321 Immunity from tort and contract 329 Immunity from statute — presumption and rebuttal 346 Immunity from statute — constitutional issues 384 Immunity from execution 391 Who is the Commonwealth? 405 6. The law applicable in federal jurisdiction Introduction 429 The law applicable in federal jurisdiction 433 Approaches to reform 435 Constitutional power and the scope of Commonwealth regulation 439 Origins of sections 79 and 80 of the Judiciary Act 443 Interpretation of section 79 446 Interpretation of section 80 460 The relationship between sections 79 and 80 462 Choice of law in actions against the Commonwealth 469 7. Judicial power in the territories Introduction 472 Commonwealth territories 473 The nature of judicial power in Commonwealth territories 478 The question of parity between territories and states 486 Background to Part IXA of the Judiciary Act 490 Suits between the Commonwealth and a territory 491 Prerogative relief in the territories 493 Historical jurisdiction of territory Supreme Courts 498 Contents 3 Executing a judgment against a territory 499 Jurisdiction of the Federal Court 500 Appeals from territory courts 502 8. Location, consolidation and simplification Introduction 506 Searching for a unifying theme 507 Arguments for relocating and consolidating provisions 510 Arguments against relocation 515 Renaming the Act 516 Renumbering the sections of the Act 517 Removing unnecessary or obsolete provisions 517 Relocating provisions to related Acts 522 Relocating provisions to new Acts 525 Provisions with respect to the territories 527 Terms of reference REVIEW OF THE JUDICIARY ACT 1903 I, DARYL WILLIAMS, Attorney-General of Australia, HAVING REGARD TO: ?? the need for clear and comprehensive legislative provisions for the exercise and distribution of the judicial power of the Commonwealth; and ?? various judicial decisions, including the recent decisions in Commonwealth v. Mewett and Re The Residential Tenancies Tribunal of New South Wales and Henderson; ex parte Defence Housing Authority which have raised issues in relation to claims brought in federal jurisdiction, including claims against the Commonwealth; REFER to the Australian Law Reform Commission for inquiry and report under the Australian Law Reform Commission Act 1996 the following matters: (a) whether the provisions relating to and governing the exercise of the judicial power of the Commonwealth in civil matters, contained in the Judiciary Act 1903 and related Acts, establish and apply the most appropriate arrangements for the efficient administration of law and justice in the exercise of federal jurisdiction; (b) whether any changes are desirable, include the appropriate legislative means of giving effect to any desirable changes, having regard to any constitutional limitations on the exercise of the judicial power of the Commonwealth; and (c) any related matter. The Commission shall consider: ?? 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 under Commonwealth laws; ?? the impact of self-government on the exercise of jurisdiction in Territory Courts under Commonwealth laws; ?? whether it is appropriate or necessary for provisions of Part IXA of the Judiciary Act relating to the Northern Territory to be replicated for the Australian Capital Territory; 6 The judicial power of the Commonwealth ?? whether the procedural provisions dealing with the High Court included in the Judiciary Act would be better placed in another Act; ?? the operation of Part VII of the Judiciary Act and particularly the workings of s.44 dealing with the remittal of matters by the High Court to other courts; ?? whether the provisions of Part IX and Part XI Division 2 of the Judiciary Act relating to or affecting proceedings involving the exercise of federal jurisdiction, including claims against the Commonwealth, continue to be appropriate, and in particular, (a) whether Commonwealth legislation should deal in greater detail or differently with the law that is to apply in proceedings involving the exercise of federal jurisdiction, including matters relating to or affecting claims against the Commonwealth, instead of placing continued reliance on the various State/Territory laws. In this connection, particular consideration should be given to whether provision should be made in relation to (i) limitation periods applicable to actions against the Commonwealth; and (ii) the basis on which interest is awarded in relation to judgments against the Commonwealth. (b) whether, and if so the extent to which, there is a need for general legislative provision, such as s.64 of the Judiciary Act, in relation to the rights of a party created by or under a statute to which the Commonwealth is not otherwise subject. In light of the current consideration being given to options to deal with the consequences of the decision of the High Court in the Wakim case, including a possible constitutional amendment, the Commission is not to examine this issue as part of this Reference. IN PERFORMING its functions in relation to this Reference the Commission shall (i) consult with relevant bodies, and particularly with ? the High Court of Australia, the Federal Court of Australia, the Family Court of Australia and other State and Territory courts exercising federal jurisdiction or jurisdiction under Commonwealth laws ? relevant federal departments and agencies, ? the Law Council of Australia, law societies, bar associations, legal aid commissions, community legal centres and national groups representing business and consumers; and Terms of reference 7 (ii) in recognition of work already undertaken, have regard to relevant reports, and any steps taken by governments and courts to implement their recommendations. IN MAKING ITS REPORT the Commission will also have regard to its function in accordance with section 21(1)(b) of the Australian Law Reform Commission Act 1996 to consider proposals for making or consolidating Commonwealth laws in relation to matters referred to it. THE COMMISSION IS REQUIRED to make a final report not later than 28 February 2001.* Dated 21 January 2000 [signed] Daryl Williams Attorney-General NOTE * In a letter dated 9 August 2000, the Attorney-General extended the deadline for reporting to 30 June 2001.
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