FEDERAL COURT

OF

AUSTRALIA

Annual Report

2002-2003

© Commonwealth of Australia 2003

ISSN 1035-5863

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FEDERAL COURT REGISTRIES

Principal Registry Level 17 Law Courts Building Queens Square Sydney NSW 2000 Phone: (02) 9230 8281 Fax: (02) 9223 7706 E-mail: [email protected] http://www.fedcourt.gov.au Hours: 8.30am-5.30pm

Australian Capital Territory District Registry New South Wales District Registry Childers Street Level 16 Law Courts Building Canberra City ACT 2601 Queens Square Phone: (02) 6267 0566 Fax: (02) 6267 0625 Sydney NSW 2000 TTY: (02) 6267 0537 Phone: (02) 9230 8567 Fax: (02) 9230 8535 E-mail: [email protected] TTY: (02) 9230 8270 Counter Hours: 10am-1pm; 2pm-4pm E-mail: [email protected] Contact Hours: 8.30am-5.00pm Counter Hours: 9.00am-4.00pm Contact Hours: 8.30am-5.00pm

Northern Territory District Registry Queensland District Registry Level 1 TCG Centre Level 6 Commonwealth Law Courts 80 Mitchell Street 119 North Quay Darwin NT 0800 Brisbane QLD 4000 Phone: (08) 8941 2333 Fax: (08) 8981 6081 Phone: (07) 3248 1100 Fax: (07) 3248 1260 TTY: (08) 8982 0838 TTY: (07) 3248 1272 E-mail: [email protected] E-mail: [email protected] Counter Hours: 8.30am-4.00pm Counter Hours: 9.00am-4.00pm Contact Hours: 8.30am-4.30pm Contact Hours: 8.30am-5.00pm

South Australia District Registry Tasmania District Registry 8th Floor Grenfell Centre Commonwealth Law Courts Building 25 Grenfell Street 39-41 Davey St Adelaide SA 5000 Hobart TAS 7000 Phone: (08) 8205 4436 Fax: (08) 8205 4439 Phone: (03) 6232 1715 Fax: (03) 6232 1701 TTY: (08) 8205 4416 TTY: (03) 6232 1865 E-mail: [email protected] E-mail: [email protected] Counter Hours: 9.00am-4.00pm Counter Hours: 9.00am-4.30pm Contact Hours: 8.30am-5.00pm Contact Hours: 8.30am-5.15pm

Victoria District Registry Western Australia District Registry 305 William Street Level 6 Commonwealth Law Courts Melbourne VIC 3000 1 Victoria Avenue Phone: (03) 8600 3333 Fax: (03) 8600 3281 Perth WA 6000 TTY: (03) 9670 0320 Phone: (08) 9268 7100 Fax: (08) 9221 3261 E-mail: [email protected] TTY: (08) 9325 7053 Counter Hours: 9am-4.30pm E-mail: [email protected] Contact Hours: 8.30am-5.15pm Counter Hours: 8.30am-4.00pm Contact Hours: 8.30am-5.15pm

Contact officer for Annual Report Executive Officer Corporate Services Branch, Principal Registry Level 17 Law Courts Building Queens Square Sydney NSW 2000 Phone: (02) 9230 8342 Fax: (02) 9223 7706 Contact Hours: 8.30am-5.00pm

An electronic version of the report is available at http://www.fedcourt.gov.au

iv CONTENTS OF ANNUAL REPORT 2002-2003

CHAPTER 1 OVERVIEW OF THE FEDERAL COURT OF AUSTRALIA __1 1.1 Establishment ______3 1.2 Functions and Powers______3 1.3 Objectives______3 1.4 The Court’s Outcome and Output Structure______3 1.5 The Court______4 Judges ______4 Appointments and retirements ______7 1.6 Registries ______9 Registrar ______9 Principal and District Registries ______9 Officers of the Court ______10 Staff of the Court ______10 CHAPTER 2 THE YEAR IN REVIEW ______11 2.1 Introduction______13 2.2 Significant Issues and Developments ______13 Casetrack______13 The eCourt ______14 Native title matters ______14 Organisational Review ______15 Maintaining a lead in Practice and Procedure______15 Review of Individual Docket System ______15 Review of Guidelines for Expert Witnesses ______15 Self-Represented Litigants ______15 Engagement with Asia-Pacific Jurisdictions ______16 2.3 The Court’s Performance and Financial Results______16 Workload ______16 Migration matters ______17 Appeals ______17 Performance against time standards ______18 Financial results ______18 CHAPTER 3 THE WORK OF THE COURT IN 2002-2003 ______19 3.1 Introduction______21 3.2 Management of cases and deciding disputes ______21 Introduction______21 The Court’s jurisdiction ______21 Changes to the Court’s jurisdiction in 2002–03 ______23 Amendments to the Federal Court of Australia Act ______23 Amendments to the Federal Court of Australia Regulations ______23 Federal Court Rules and Practice Notes ______24 Federal Court Workload in the General Federal Law Jurisdiction______25 Caseflow management of the Court’s jurisdiction ______26

v

The workload of the Court in its original jurisdiction ______29 The Court’s Appellate Jurisdiction ______32 The Court’s workload in particular areas of its jurisdiction ______34 Native Title Matters ______36 Assisted Dispute Resolution ______42 Management of Cases and Deciding Disputes by Tribunals ______43 3.3 Improving access to the court and contributing to the Australian Legal System ______44 Introduction______44 Practice and Procedure Reforms______44 Assistance for Self Represented Litigants ______46 Interpreters ______48 Remission or Waiver of court and registry fees ______48 Gender Issues ______49 Disability, race and sex discrimination______49 eCourt Strategy ______50 Remote hearings ______53 Public Information ______53 Community Relations ______55 Complaints about the Court’s processes______56 Cross-vesting Monitoring Committee ______56 Involvement in legal education programs and legal reform activities ____56 3.4 Work with International Jurisdictions ______57 Introduction______57 Legal Education Programs ______57 Participation in international committees and conferences ______59 Library services to the South Pacific and Thailand ______60 Visitors to the Court ______60 Pegasus Scholarship Trust ______60 CHAPTER 4 MANAGEMENT OF THE COURT ______63 4.1 Introduction______65 4.2 Corporate Services ______66 Financial Management ______66 Risk Management and Internal Audit______67 Consultancy Services ______68 Advertising and Marketing Services______68 Technology Services______69 Human Resources ______70 Library and Information Services ______78 Commonwealth Disability Strategy ______79 Improved access to Court buildings ______80 Property Management______81 Environmental Management______81 APPENDIX 1 Financial Statements 2002 – 2003______83 APPENDIX 2 Management Structure ______113 APPENDIX 3 Registrars of the Court______114

vi APPENDIX 4 Federal Court of Australia - jurisdiction – list of statutes ______117 APPENDIX 5 Workload Statistics ______121 APPENDIX 6 Work of Tribunals ______137 APPENDIX 7 Summary of Decisions of Interest______142 APPENDIX 8 Judges’ participation in legal reform activities and international committees and conferences in 2002-03 ______159 APPENDIX 9 Equal employment opportunity statistics ______167 APPENDIX 10 Statement under the Freedom of Information Act 1982______168

INDEX ______170

vii

CHAPTER 1

OVERVIEW OF THE FEDERAL COURT OF

AUSTRALIA

Chapter 1 – Overview of the Court

1.1 ESTABLISHMENT

The Federal Court of Australia, created by the Federal Court of Australia Act 1976, began to exercise its jurisdiction on 1 February 1977. It assumed jurisdiction formerly exercised in part by the High Court of Australia and the whole of the jurisdiction of the Australian Industrial Court and of the Federal Court of Bankruptcy.

The Court is a superior court of record and a court of law and equity. It sits in all capital cities and elsewhere in Australia from time to time.

1.2 FUNCTIONS AND POWERS

The Court's original jurisdiction is conferred by over 150 statutes of the Parliament. A list of these Acts appears in Appendix 4 on page 117.

The Court has a substantial and diverse appellate jurisdiction. It hears appeals from decisions of single judges of the Court, and from the Federal Magistrates Court in non-family law matters. The Court also exercises general appellate jurisdiction in criminal and civil matters on appeal from the Supreme Court of Norfolk Island. On 14 October 2002 the Court’s jurisdiction to hear and determine appeals from the Supreme Court of the Australian Capital Territory (‘ACT’) was transferred to the ACT Court of Appeal. The Court's jurisdiction is described more fully in Chapter 3.

1.3 OBJECTIVES

The objectives of the Court are to:

• decide disputes according to law – promptly, courteously and effectively; and in so doing to interpret the statutory law and develop the general law of the Commonwealth, so as to fulfil the role of a court exercising the judicial power of the Commonwealth under the Constitution;

• provide an effective registry service to the community; and

• manage the resources allotted by Parliament efficiently.

1.4 THE COURT’S OUTCOME AND OUTPUT STRUCTURE

In October 1998, the Court adopted an outcome and output structure in accordance with the accrual budgeting arrangements that commenced in 1999–2000. During 2001-02, the Court reviewed its outcome and output structure and in 2002-03, a revised structure was implemented. A copy of the new structure appears in Chapter 4 on page 67.

This report uses the revised outcome and output structure to outline the Court’s work and performance during 2002-03. Chapter 3 reports on these issues in detail.

3 Federal Court of Australia – Annual Report 2002- 2003

1.5 THE COURT

Judges

The Federal Court of Australia Act provides that the Court consists of a Chief Justice and other judges as appointed. The Chief Justice is the senior judge of the Court and is responsible for ensuring the orderly and expeditious discharge of the business of the Court.

Judges of the Court are appointed by the Governor-General by commission. Judges may not be removed except by the Governor-General on an address from both Houses of Parliament in the same session, praying for the judge's removal on the ground of proved misbehaviour or incapacity. This requirement is contained in section 72 of the Commonwealth of Australia Constitution Act 1901 and Part II of the Federal Court of Australia Act.

Until 1977 judges were appointed for life. As a consequence of the constitutional referendum in that year, all judges appointed after 1977 must retire at the age of 70.

Judges, other than the Chief Justice, may hold more than one judicial office at the one time. Most judges have other commissions and appointments.

As at 30 June 2003 there were 46 judges of the Court. They are listed below in order of seniority. The list gives details about each judge and any other commissions or appointments held on courts or tribunals. Of the 46 judges, there were 4 whose work as members of other courts or tribunals occupied all, or most, of their time.

Judges of the Court (as at 30 June 2003)

Judge Location Other Commissions/Appointments

Chief Justice The Hon Michael Eric John BLACK AC Melbourne

The Hon Bryan Alan Sydney Supreme Court of Norfolk Island – Chief Justice, BEAUMONT Tongan Court of Appeal – Judge Administrative Appeals Tribunal – Presidential Member Supreme Court of Fiji – non-resident, semi-permanent Judge

The Hon Murray Rutledge Sydney Industrial Relations Court of Australia – Chief Justice WILCOX Supreme Court of the ACT – Additional Judge Supreme Court of Norfolk Island – Judge

The Hon Jeffrey Ernest John Brisbane Industrial Relations Court of Australia– Judge SPENDER Supreme Court of the ACT – Additional Judge Administrative Appeals Tribunal – Presidential Member

The Hon Peter Ross Awdry Melbourne Industrial Relations Court of Australia– Judge GRAY Administrative Appeals Tribunal – Presidential Member

4 Chapter 1 – Overview of the Court

Judge Location Other Commissions/Appointments

The Hon Donnell Michael Melbourne Industrial Relations Court of Australia – Judge RYAN Supreme Court of the ACT – Additional Judge

The Hon Robert Shenton Perth Administrative Appeals Tribunal – Presidential Member FRENCH Supreme Court of Fiji – non-resident, semi-permanent Judge

The Hon Alastair Bothwick Melbourne Family Court of Australia – Chief Justice NICHOLSON AO, RFD

The Hon Malcolm Cameron Perth Industrial Relations Court of Australia – Judge LEE Supreme Court of the Cocos (Keeling) Islands – Additional Judge

The Hon John William Adelaide Human Rights and Equal Opportunity Commission - von DOUSSA President Supreme Court of Vanuatu – Acting Judge Court of Appeal Supreme Court of Fiji – non-resident, semi-permanent Judge

The Hon Donald Graham Sydney Administrative Appeals Tribunal – Presidential Member HILL

The Hon Terence John Canberra Supreme Court of the ACT – Chief Justice HIGGINS

The Hon Peter Cadden Melbourne Defence Force Discipline Appeal Tribunal – President HEEREY

The Hon Richard Ellard Brisbane Supreme Court of the ACT – Additional Judge COOPER Australian Competition Tribunal – Deputy President

The Hon Antony Philip Sydney Supreme Court of the ACT – Additional Judge WHITLAM Federal Police Disciplinary Tribunal – President

The Hon Christopher John Perth Seymour Metford CARR

The Hon Michael Francis Sydney Industrial Relations Court of Australia – Judge MOORE

The Hon Catherine Margaret Sydney BRANSON

The Hon Kevin Edmund Sydney Copyright Tribunal – President LINDGREN

The Hon Brian John Michael Sydney TAMBERLIN

The Hon Ronald Sydney SACKVILLE

The Hon Susan Mary Brisbane Federal Police Disciplinary Tribunal – Deputy President KIEFEL Australian Law Reform Commission – Part-time Commissioner

5 Federal Court of Australia – Annual Report 2002- 2003

Judge Location Other Commissions/Appointments

The Hon Robert David Perth Administrative Appeals Tribunal – Presidential Member NICHOLSON AO

The Hon Paul Desmond Canberra FINN

The Hon Ross Alan Melbourne SUNDBERG

The Hon Shane Raymond Melbourne Industrial Relations Court of Australia– Judge MARSHALL

The Hon Anthony Max Melbourne Industrial Relations Court of Australia– Judge NORTH

The Hon Rodney Neville Sydney Industrial Relations Court of Australia – Judge MADGWICK Supreme Court of the ACT – Additional Judge

The Hon Ronald Melbourne MERKEL

The Hon John Ronald Adelaide MANSFIELD

The Hon Alan Henry Melbourne Australian Competition Tribunal – Deputy President GOLDBERG

The Hon Arthur Robert Sydney Copyright Tribunal – Deputy President EMMETT

The Hon Raymond Antony Melbourne Copyright Tribunal – Deputy President FINKELSTEIN

The Hon Geoffrey Michael Melbourne Australian Industrial Relations Commission – President GIUDICE

The Hon Mark Samuel Melbourne Supreme Court of the ACT – Additional Judge WEINBERG Federal Police Disciplinary Tribunal – Deputy President Australian Law Reform Commission – Part-time Commissioner Supreme Court of Fiji – non-resident, semi-permanent Judge The Hon John Alfred Brisbane DOWSETT

The Hon Peter Graham Sydney Australian Competition Tribunal – Deputy President HELY

The Hon Susan Coralie Melbourne Australian Law Reform Commission – Part-time KENNY Commissioner

The Hon Roger Vincent Sydney Supreme Court of the ACT – Additional Judge GYLES AO Court of Arbitration for Sport - Member

The Hon Richard Alan Sydney CONTI

6 Chapter 1 – Overview of the Court

Judge Location Other Commissions/Appointments

The Hon Margaret Ackary Sydney STONE

The Hon James Leslie Bain Sydney ALLSOP

The Hon Garry Keith Sydney Administrative Appeals Tribunal – President DOWNES AM

The Hon Peter Michael Sydney JACOBSON

The Hon Bradley Maxwell Adelaide SELWAY

The Hon Annabelle Claire Sydney BENNETT

The Chief Justice was absent on the following dates during the year. Acting Chief Justice arrangements during the periods are indicated.

1 July - 12 July 2002 The Hon Justice Beaumont 28 November - 29 November 2002 The Hon Justice Beaumont 22 June - 28 June 2003 The Hon Justice Gray

The judges of the Court must devote an increasing proportion of their time to other courts and tribunals on which they hold commissions or appointments. In addition to the time spent hearing cases, time was necessarily devoted to other work related to those commissions or appointments, such as writing reserved judgments.

Some judges are identified as designated persons under various Acts, which means they may issue warrants authorising telephone interceptions and the use of listening devices. These functions add to their workload.

Members of the Court also spend a significant amount of time on other activities related to legal education and the justice system. More information about these activities is set out in Chapter 3 and Appendix 8.

Appointments and retirements

During the year 2 judges were appointed to the Court:

The Honourable Justice Bradley Maxwell Selway (resident in Adelaide) was appointed on 18 November 2002.

The Honourable Justice Annabelle Claire Bennett (resident in Sydney) was appointed on 5 May 2003.

7 Federal Court of Australia – Annual Report 2002- 2003

During the year 4 judges retired or resigned from the Court:

The Honourable Justice Jeffrey Allan Miles AO resigned his commission as a judge of the Court on 30 September 2002.

The Honourable Justice Howard William Olney resigned his commission as a judge of the Court on 30 April 2003.

The Hon Justice Maurice Francis O’Loughlin retired from his commission as a judge of the Court on 28 January 2003.

The Hon Justice Douglas Paton Drummond resigned his commission as a judge of the Court on 12 April 2003.

Other appointments, resignations and retirements during the year included:

Justice Beaumont was appointed a non-resident semi permanent member of the Supreme Court of Fiji for a period of three years with effect from 1 January 2003.

Justice von Doussa was appointed President of the Human Rights and Equal Opportunity Commission with effect from 10 June 2003.

Justice von Doussa was appointed a non-resident semi permanent member of the Supreme Court of Fiji for a period of three years with effect from 1 January 2003.

Justice French was appointed a non-resident semi permanent member of the Supreme Court of Fiji for a period of three years with effect from 1 January 2003.

Justice Higgins was appointed Chief Justice of the Supreme Court of the ACT with effect from 31 January 2003.

Justice Cooper was appointed a Deputy President of the Australian Competition Tribunal for a period of five years with effect from 14 November 2002.

Justice Kiefel was appointed a part-time member of the Australian Law reform Commission for a period of three years with effect from 7 April 2003.

Justice Goldberg was re-appointed as Deputy President of the Australian Competition Tribunal for a further period of five years with effect from 1 April 2003.

Justice Weinberg was appointed a non-resident semi permanent member of the Supreme Court of Fiji for a period of three years with effect from 1 January 2003.

Justice Weinberg was appointed an additional judge of the Supreme Court of the Australian Capital Territory with effect from 17 February 2003.

8 Chapter 1 – Overview of the Court

Justice Kenny was appointed a part-time member of the Australian Law reform Commission for a period of three years with effect from 15 May 2003.

Justice Gyles was appointed a member of the Court of Arbitration for Sport (CAS) on 23 May 2003.

Justice Miles resigned his commission as Chief Justice of the Supreme Court of the ACT to take effect from midnight on 30 September 2002.

Justice Olney resigned his commission as an Additional Judge of the Supreme Court of the Northern Territory to take effect from 30 April 2003.

Justice von Doussa resigned his commissions as a Judge of the Industrial Relations Court of Australia, an Additional Judge of the Supreme Court of the Australian Capital Territory, President of the Australian Competition Tribunal, and a Presidential Member of the Administrative Appeals Tribunal to take effect from 6 June 2003.

1.6 REGISTRIES

Registrar

Mr Warwick Soden is the Registrar of the Court. The Registrar is appointed by the Governor-General on the nomination of the Chief Justice. The Registrar has the same powers as the Head of a Statutory Agency of the Australian Public Service in respect of the officers and staff of the Court employed under the Public Service Act 1999 (section 18Q of the Federal Court of Australia Act).

Principal and District Registries

The Principal Registry of the Court, located in Sydney, is responsible for the overall administrative policies and functions of the Court’s registries and provides policy advice, personnel services, financial management, computing support, library services, property management and support to the judges’ committees.

There is a District Registry of the Court in each capital city. The District Registries provide operational support, as well as information to legal practitioners and members of the public. The registries receive court and related documents, assist with the arrangement of court sittings and facilitate the enforcement of orders made by the Court.

Legal staff of the registries perform statutory functions assigned to them by the Federal Court of Australia Act and the Federal Court Rules. These include issuing process, taxing costs and settling appeal indexes. Many of them also exercise various powers, which are delegated by judges, under the Bankruptcy Act 1966, Corporations Act 2001 and Native Title Act 1993. These include the power to conduct examinations of bankrupt individuals and associated persons under the Bankruptcy Act and examinations of company officers and others under the Corporations Act. Senior legal staff are delegated to exercise powers to make sequestration (bankruptcy) orders,

9 Federal Court of Australia – Annual Report 2002- 2003 orders for the winding up of companies and the setting aside of statutory demands. A number of staff in each registry also perform functions and exercise delegated powers under the Federal Magistrates Act 1999.

Most District Registries are also registries for the following federal tribunals: the Australian Competition Tribunal, the Defence Force Discipline Appeal Tribunal and the Federal Police Disciplinary Tribunal. The Tasmania District Registry is a joint registry for the Administrative Appeals Tribunal and the National Native Title Tribunal. The Registry of the Copyright Tribunal is located in the New South Wales District Registry of the Court.

The registries of the Court are also registries for the Industrial Relations Court of Australia until the work of that Court is completed, and for the Federal Magistrates Court in relation to non-family law matters.

More information on the management of the Court is outlined in Chapter 4.

Officers of the Court

Officers of the Court are appointed by the Registrar under section 18N of the Federal Court of Australia Act. The officers of the Court are:

(a) a District Registrar for each District Registry; (b) Deputy Registrars and Deputy District Registrars; (c) a Sheriff and Deputy Sheriffs; and (d) Marshals under the Admiralty Act.

The Registrar, District Registrars, Deputy Registrars and Deputy District Registrars must take an oath or make an affirmation of office before undertaking the duties of registrar (section 18Y of the Federal Court of Australia Act). A list of registrars is at Appendix 3 on page 113.

Staff of the Court

The officers and staff of the Court (other than the Registrar and some Deputy Sheriffs) are appointed or employed under the Public Service Act. On 30 June 2003 there were 368 persons employed Australia-wide as registry staff or as judges’ personal staff. Generally, judges have two personal staff members. More details on Court staff are set out in Tables 4.3 to 4.6 in Chapter 4 on pages 73 to 76.

10

CHAPTER 2

THE YEAR IN REVIEW

Chapter 2 – The Year in Review

2.1 INTRODUCTION

During the year under review the Court continued to achieve its objective of promptly, courteously and effectively deciding disputes according to law in order to fulfil its role as a court exercising the judicial power of the Commonwealth under the Constitution. Through its jurisdiction, the Court applied and upheld the rule of law to deliver remedies and enforce rights and in so doing, contributed to the social and economic development and well being of all Australians. The Court’s innovative approach to managing its work and the way the Court operates as an organisation, brought continuing recognition of its role as a world-class civil court.

2.2 SIGNIFICANT ISSUES AND DEVELOPMENTS

In addition to continuing to focus upon achieving performance goals for the Court’s core work, the Court also focussed on the successful implementation of key strategic decisions, some of which had been the result of long term planning by the Court, through the development of major operational projects. For example, the implementation of the Casetrack software package to support and enhance the Court’s case management procedures has been initiated during the reporting year. Similarly, the Court undertook an extensive internal review during the year, which was foreshadowed in the Court’s Certified Agreement for 2002-2005 finalised last reporting year. More details on these projects and other major areas of strategic work for the Court during the year are outlined below.

Initiatives such as the implementation of Casetrack and the Self-represented Litigants Management Plan discussed below will be priority projects for 2003-04. The management of migration cases, also discussed below, will be another major area of work for the Court in 2003-04.

Casetrack

During the reporting year the Court decided to implement the Casetrack information system to support the Court's case management procedures. Casetrack is a complete court management system currently supporting the operations of the Family Court of Australia and the Federal Magistrates Court (in family law matters). The new system will integrate the complex functions involved in the Court's case management activities, including filing, listings, fee collection, reporting and document production (such as orders in the court room). Casetrack will also provide a foundation to support the further development of the Court’s eCourt initiatives and will provide essential statistical, operational and other management information through its reporting facilities.

It is expected that Casetrack will be operational within the Court by late 2003, beginning with the smaller registries of the Court, culminating in all registries being online to Casetrack by June 2004.

13 Federal Court of Australia – Annual Report 2002- 2003

The eCourt

In line with its commitment to ensuring that the Court is relevant and responsive to the needs of the Australian community in the 21st century, the Court has continued this year to build on its eCourt strategy. The eCourt strategy was introduced by the Court in 2001 and aims to improve access to the Court by applying new and emerging technology to its practices and procedures. The strategy builds on the Court’s established reputation for pioneering the application of technology in its work. During the year the Court focussed on consolidating the eCourt initiatives introduced in previous years, including the Electronic Filing System, the eCourt online forum, the greater use of electronic appeals and enhancements to the Court’s video-conferencing infrastructure. Work is also focussing on how the eCourt initiatives will configure with the new Casetrack system. More details on the eCourt are outlined in Chapter 3.

Native title matters

The Court continued to use a range of innovative strategies in its management of native title cases. In particular, the Court’s approach to managing native title cases during the year focussed on the following strategies to progress cases for hearing by the Court: - a high level of specificity was required in timetabling activities, such as mediation; - greater use was made of regional case management conferences; - identifying common regional issues within applications which would benefit from greater use of different case management strategies; and - hearing ‘early’ evidence from applicants (either for the limited purpose of preserving the evidence of applicants who are elderly or unwell or to test the issue of connection); and - the application of early neutral evaluation procedures, where appropriate.

The Court also convened a number of user group meetings during the reporting period, including a meeting of the National User Group in Melbourne in May 2003. The National User Group meeting focussed on the progress of cases and consequent resource demands on applicants and respondents. Meetings of local user groups in the states and territories were also well attended and a constructive forum for exchanging ideas about the management of cases at a local level.

During the year the Court’s Native Title Coordinating Committee also gave careful consideration to the Court’s time goal for the completion of native title cases to ensure its continued relevance. The goal was discussed extensively, including at the National User Group, and it was generally agreed that it is desirable for the Court to keep a national target, while noting that this may be varied at a regional level by local targets, determined on the basis of information provided by local native title user groups or at regional case conferences. The adoption of local timeframe targets has been applied successfully in number of regional case management conferences held during the year. More details on the Court’s native title work are outlined in 3.2 of Chapter 3.

14 Chapter 2 – The Year in Review

Organisational Review

During the year the Court undertook a major internal review of its administrative structures, which was oversighted by a Steering Committee of judges, senior court staff and a union representative and chaired by Justice Sackville. The purpose of the review was to identify strategies for improving the Court’s administrative efficiency and it was undertaken with extensive consultation with judges and staff of the Court. The review considered a broad range of issues including, the structure of the administration of the Court, the Court’s governance and decision-making structures and its internal resource allocation processes. The Steering Committee’s report on the review is now a significant issue for consideration by the Chief Justice and other judges of the Court and implementation of its recommendations will be a priority for 2003-04.

Maintaining a lead in Practice and Procedure

In 2001-02, the Court reported that it would focus on a number of priority projects to enhance the practice and procedures of the Court. The following outlines the progress of these projects.

Review of Individual Docket System

Last year the Court reported that during 2002-03 it would undertake an internal review of its Individual Docket System (IDS) following external reviews by the Law and Justice Foundation of New South Wales and the Law Council of Australia.

The internal review of the Individual Docket System was completed during the reporting year, with the judges of the Court agreeing that the Court should maintain the IDS, noting that its inherent flexibility (which allows some variation in its administration across the Court) should be an accepted part of the system and, at this stage, no rules should be introduced to limit this flexibility. It was also agreed that the operation of the IDS in each registry should be reviewed annually, including in light of feedback from the Law Council of Australia and local practitioners.

Review of Guidelines for Expert Witnesses

The Court also completed its review of the Practice Direction on Guidelines for Expert Witnesses, which was introduced by the Court in September 1998. A revised Practice Direction was prepared in light of the feedback received from professions across Australia, including the Council of the Professions and the Law Council of Australia and was issued on 4 September 2003.

Self Represented Litigants

During 2002-03, a committee of the Court comprising judges and court staff gave detailed consideration to the issues raised by the increasing number of self represented litigants in the Court and the impact on the time and resources needed to resolve the matters in which such litigants are involved. In 2002-03 about 38 percent of matters in the Court involved at least one party who was not represented at some stage in the proceeding.

15 Federal Court of Australia – Annual Report 2002- 2003

The committee’s work resulted in the development of a Self Represented Litigants Management Plan, which was adopted in August 2002 to enable the Court to implement better management practices to address the needs of self represented litigants. Strategies in the Management Plan include: improving the collection of information on self represented litigants; reviewing the Court’s rules, forms and brochures and improving staff training on appropriate assistance for self represented litigants. More details on this work are outlined in 3.3 of Chapter 3.

Engagement with Asia-Pacific Jurisdictions

During the year the Court continued its high level of involvement in activities providing assistance to judiciaries in Asia and the South Pacific. In particular, the Court continued its major judicial training program with the Supreme Court of Indonesia, which was funded by the Australia Agency for International Development (AusAID). The Court will conduct a further program in 2003-04, which will be the fifth program conducted since 1999.

The Court also continues its involvement in other activities, which include the provision of library assistance to courts in the South Pacific and hosting and arranging visits to the Court by many delegations of judges and court officials. The Court’s commitment to these activities continues to provide a challenge in terms of managing the resources devoted to this important work. However, judges of the Court are enthusiastic about their role in these activities and their involvement is usually undertaken in addition to their normal judicial workload. More details on this work are outlined in 3.4 of Chapter 3.

2.3 THE COURT’S PERFORMANCE AND FINANCIAL RESULTS

Workload

During the year there were several significant trends in the Court’s workload. One of these was the growing workload in the general federal law jurisdiction. Since 2000, when the Federal Magistrates Court was established, the total number of cases in the federal law jurisdiction (ie filings in the Federal Court and the Federal Magistrates Court) has increased by more than 2,500 cases per annum. There has been a significant resource impact for Federal Court registries arising from this additional workload, as the registries provide support for both courts through processing documents and supporting the listing and hearing of each matter, including the significant number of matters which are transferred from the Federal Court to the Federal Magistrates Court.

The Court’s appellate workload also increased during the year and more than one third of appeals (227 appeals) were against decisions of the Federal Magistrates Court. The trend also continued for more people to appear without legal representation in appeals before the Full Court. Parties appearing without representation often take more time to present their appeal than those who are represented.

There was a significant reduction in the number of matters commenced in the Court, due primarily to the large number of applications under the Bankruptcy Act 1966

16 Chapter 2 – The Year in Review made to the Federal Magistrates Court that would otherwise have been made to the Federal Court. In addition, a number of matters concerning the review of decisions under the Migration Act 1958 were transferred to the Federal Magistrates Court. The movement of these less complex cases to the Federal Magistrates Court is yet to have a significant impact on the workload of the judges as almost all Bankruptcy Act matters were dealt with by the Court’s registrars. However, it is increasing the Court’s capacity to focus on the more complex cases that come before it.

Notwithstanding the challenges presented by these changes, the Court maintained its performance by disposing of 80.2 per cent of cases in less than 18 months from the date of filing.

Detailed information about the Court's workload can be found in Chapter 3.

Migration matters

In its annual report for 2001-02, the Court indicated that it expected that the number of migration matters commenced in the Court would decline once the effect of the changes to the Migration Act, which were made in October 2001 and intended to restrict the jurisdiction of the Court, had been determined and understood by those who advise migration applicants, and as a result of the Federal Magistrates Court exercising first instance jurisdiction in this area.

However, in February 2003 the High Court in Plaintiff S157/2002 v Commonwealth of Australia found that proceedings where the plaintiff asserts jurisdictional error may still be commenced in the Federal Court and Federal Magistrates Court, and may be remitted by the High Court to the Federal Court. In particular, this decision led to the High Court remitting 586 matters to the Federal Court that had been pending the decision in Plaintiff S157/200. The High Court also ordered the remittal of a large number of cases that have been pending its decisions in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal. The number of cases that may be remitted pursuant to this order is expected to be in excess of 1,500. This will have a considerable impact on the workload of the Federal Court.

The number of matters concerning decisions under the Migration Act filed in, or remitted to, the Court’s original jurisdiction was 1,836 in 2002–03, compared to 1,381 in 2001–02. This increase was primarily due to the cases remitted by the High Court. Migration Act matters also form a substantial proportion of the Court’s appellate jurisdiction - 66.5 per cent of appeals in 2002-03.

The Court has put in place specific procedures to deal with the large number of cases being remitted by the High Court and to manage the appellate workload. These are discussed in more detail under 3.2 in Chapter 3.

Appeals

The appellate work of the Court continues to be substantial. In 2002-03, 622 appeals were filed in the Court – 3.1 per cent more than the number filed in 2001-02. The matters brought to the Court in its appellate jurisdiction range from long and complex native title claims through to the high volume Migration Act cases noted above. The

17 Federal Court of Australia – Annual Report 2002- 2003

Court’s Management of Appeals Committee continues to identify, propose and implement solutions to the management issues related to the Court’s heavy appellate workload. More detailed discussion of the Court’s appellate workload is included in Chapter 3.

Performance against time standards

The Court has two key standards, referred to as time goals. The first concerns the time cases should take from filing to completion. The second concerns the time within which reserved judgments are delivered. The time goals are established to help achieve performance. They do not determine the time all cases take, as some long and complex cases will necessarily take longer than 18 months. As well, many cases need to be dealt with promptly (in a few months) and the Court identifies these matters and attempts to resolve them quickly. The Court’s Individual Docket System, (where a case is allocated to a judge when it is commenced and is managed by that judge), helps the priority-setting process.

85 per cent of cases completed within 18 months of commencement

The Court has set a time goal of 85 per cent of cases (excluding native title matters) to be disposed within eighteen months from commencement. The goal is regularly reviewed by the Court.

In 2002-03 the Court completed 80.2 per cent of cases in its original and appellate jurisdictions within eighteen months. Further details about the completion of cases are set out in Chapter 3.

Judgments to be delivered within three months

The Court has set the period of three months as the goal within which reserved judgments will be delivered. The degree to which the Court will meet this goal is dependent upon the complexity of the case and the pressure of other business upon the Court. During 2002-03 the Court handed down 1,145 reserved judgments, with almost 76 per cent of them delivered in less than three months from the date of being reserved.

Financial results

As a result of careful management the Court achieved a surplus for the reporting year. The Court initiated a range of savings strategies during the reporting year which contributed to this positive outcome. Possible savings initiatives arising from the Organisation Review will also a priority for implementation in 2003-04.

18

CHAPTER 3

THE WORK OF THE COURT IN 2002-2003

Chapter 3 – The Work of the Court in 2002 - 2003

3.1 INTRODUCTION

The Federal Court has one key outcome identified for its work, which is, through its jurisdiction, to apply and uphold the rule of law to deliver remedies and enforce rights and in so doing, contribute to the social and economic development and well-being of all Australians.

This Chapter reports on the Court’s performance against this objective. In particular, this Chapter reports extensively on the Court’s workload during the year, as well as its management of cases and performance against its stated workload goals. The Chapter also reports on aspects of the work undertaken by the Court to improve access to the Court for its users, including through changes to its practices and procedures and also through the increased use of technology within the Court. The Chapter also reports on the Court’s work with overseas jurisdictions.

3.2 MANAGEMENT OF CASES AND DECIDING DISPUTES

Introduction

This part of the annual report examines the Court’s jurisdiction, management of cases, workload and use of assisted dispute resolution.

The Court’s jurisdiction

The Court's jurisdiction is broad, covering almost all civil matters arising under Australian federal law and some summary criminal matters. It also has jurisdiction to hear and determine any matter arising under the Constitution or involving its interpretation.

Cases arising under Part IV (restrictive trade practices) and Part V (consumer protection) of the Trade Practices Act 1974 constitute a significant part of the workload of the Court. These cases often raise important public interest issues involving such matters as mergers, misuse of market power, exclusive dealing or false advertising. See Figure 5.7 on page 131 for comparative statistics regarding Trade Practices Act matters.

Administrative law is an important area of jurisdiction. Many cases arise under the Administrative Decisions (Judicial Review) 1977. This Act provides for judicial review of most administrative decisions made under Commonwealth enactments on grounds relating to the legality, rather than the merits, of the decision. The Court also hears appeals on questions of law from the Administrative Appeals Tribunal under the Act. The Tribunal has power to review on the merits many Commonwealth administrative decisions. Appeals from the Tribunal are heard by the Court in its original jurisdiction.

The Court also has jurisdiction under the Judiciary Act 1903 to hear applications for judicial review of decisions by officers of the Commonwealth. This jurisdiction includes the review of ‘privative clause’ and other decisions by the Migration Review Tribunal and the Refugee Review Tribunal under the Migration Act 1958. Most of the

21 Federal Court of Australia – Annual Report 2002- 2003 decisions for which review is sought are concerned with whether a person may reside in Australia permanently. The Court’s migration jurisdiction is discussed on page 34.

The Court hears taxation matters on appeal from the Administrative Appeals Tribunal. It also exercises a first instance jurisdiction to hear objections to decisions made by the Commissioner of Taxation.

The Court shares first instance jurisdiction with the Supreme Courts of the States and Territories in the complex area of intellectual property (copyright, patents, trade marks and designs). All appeals in these cases, including appeals from the Supreme Courts, are to a Full Federal Court.

A significant part of the Court’s jurisdiction derives from the Native Title Act. Since 30 September 1998, the Court has had jurisdiction to hear and determine native title determination applications, revised native title determination applications, compensation applications, claim registration applications, applications to remove agreements from the Register of Indigenous Land Use Agreements and applications about the transfer of records. The Court also hears appeals from the National Native Title Tribunal (‘NNT Tribunal ‘) and matters filed under the Administrative Decisions (Judicial Review) Act involving native title. The Court’s native title jurisdiction is discussed on page 36.

Another important part of the Court’s jurisdiction derives from the Admiralty Act 1988. The Court has concurrent jurisdiction with the Supreme Courts of the States and Territories to hear maritime claims under this Act. Ships coming into Australian waters may be arrested for the purpose of providing security for money claimed from ship owners and operators. If security is not provided, a judge may order the sale of the ship to provide funds to pay the claims. During the reporting year the Court’s Admiralty Marshal made nine arrests, with one vessel still under arrest as at 30 June 2003. One vessel, the ‘MSC Sumatra’, was sold in the reporting year pursuant to an order of the Court. See Figure 5.9 on page 133 for a comparison of Admiralty Act matters filed in the past five years.

The Court’s jurisdiction under the Corporations Act 2001 and Australian Securities and Investments Commission Act 2001 (‘ASIC Act’) covers a diversity of matters ranging from the appointment of provisional liquidators and the winding up of companies, to applications for orders in relation to fundraising, corporate management and misconduct by company officers. The jurisdiction is exercised concurrently with the Supreme Courts of the States and Territories. See Figure 5.6 on page 130 for a comparison of corporations matters filed in the last five years.

The Court exercises jurisdiction under the Bankruptcy Act. It has power to make sequestration (bankruptcy) orders against persons who have committed acts of bankruptcy and to grant bankruptcy discharges and annulments. The Court’s jurisdiction includes matters arising from the administration of bankrupt estates.

The Court has a substantial and diverse appellate jurisdiction. It hears appeals from decisions of single judges of the Court, and from the Federal Magistrates Court in non-family law matters. The Court also exercises general appellate jurisdiction in criminal and civil matters on appeal from the Supreme Court of Norfolk Island. On

22 Chapter 3 – The Work of the Court in 2002 - 2003

14 October 2002 the Court’s jurisdiction to hear and determine appeals from the Supreme Court of the Australian Capital Territory (‘ACT’) was transferred to the ACT Court of Appeal. The Court’s appellate jurisdiction is discussed on page 33. Figure 5.10 on page 134 shows the appeals filed in the Court since 1998-99. Figure 5.11 on page 134 shows the source of Full Court appeals.

This summary refers only to some of the principal sources of the Court's work. Other matters heard by the Court range from cases involving anti-dumping notices, tariff concession orders, to cases arising under Commonwealth anti-discrimination legislation. Statutes under which the Court exercises jurisdiction are listed in Appendix 4 on page 117.

Changes to the Court’s jurisdiction in 2002–03

The Court’s jurisdiction during the year was enlarged or otherwise affected by several statutes including:

• Jurisdiction of Courts Legislation Amendment Act 2002 • Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 • Copyright Amendment (Parallel Importation) Act 2003.

Amendments to the Federal Court of Australia Act

On 14 October 2002, the Jurisdiction of Courts Legislation Amendment Act 2002 made a number of amendments to the Federal Court of Australia Act. These included new provisions on the use of video and audio links to receive submissions and evidence, allowing the Chief Justice of the Federal Court to refer part of a matter to the Full Court, abolishing the office of judicial registrar, allowing a single judge in an appeal to order that an appeal be dismissed for want of prosecution or failure to comply with a direction of the Court, and allowing a writ, commission or process to be signed by affixing an electronic signature.

The Court is seeking further amendments to the Federal Court of Australia Act to make it clear that a single Judge may grant an interlocutory injunction to operate pending a determination of an appeal to a Full Court, enhance the power of a single Judge to exercise Full Court jurisdiction in relation to certain interlocutory matters, and provide that a person seeking leave to intervene in a proceeding has no right to appeal (by leave or otherwise) against an order refusing intervention or an order specifying the terms and conditions to which intervention will be subject.

Amendments to the Federal Court of Australia Regulations

During the reporting year, the Court provided detailed comments to the Attorney- General’s Department in relation to a draft of the revised Federal Court of Australia Regulations. The new Regulations are being written using plain language and a simpler structure, and incorporate a number of amendments to address various administrative issues. As noted in previous annual reports, many of the suggested changes will support the Court’s electronic filing facility.

23 Federal Court of Australia – Annual Report 2002- 2003

Federal Court Rules and Practice Notes

The judges are responsible for making the Rules of Court under the Federal Court of Australia Act. The Rules provide the procedural framework within which matters are commenced and conducted in the Court. The Rules of Court are made as Commonwealth Statutory Rules. The Rules are drafted by the Court’s Rules Committee with the assistance of the Deputy Registrar. An officer from the Office of Legislative Drafting within the Attorney-General’s Department assists with the form and publication of the new Rules.

The Rules are kept under review. New and amending rules are made when needed to ensure that the Court's procedures are up to date and responsive to the needs of modern litigation. They also provide the framework for new jurisdiction conferred upon the Court. A review of the Rules is often undertaken as a consequence of changes to the Court's practice and procedure described elsewhere in this report. Where appropriate, proposed amendments are discussed with the Law Council of Australia and other relevant organisations.

During the reporting year, a number of amendments were made to the Rules. These included amendments to:

• revise the rules concerning, and introduce a new form of application for, applications under the Judiciary Act for the review of certain decisions under the Migration Act; • make specific provision for the granting of leave, with or without conditions, to a person seeking to intervene in a proceeding or appeal; • the rules dealing with proceedings under the Workplace Relations Act in light of major changes to that Act in relation to the regulation of registered organisations; • allow the Court or a Judge to delegate to a registrar the power of the Court to issue a writ of execution; and • omit the rules concerning the receipt of appearances, submissions and evidence by audio or video link as these were no longer necessary given amendments to the Federal Court of Australia Act on the use of audio and video links.

Other amendments were made in relation to the rules for default judgment, transfers to the Federal Magistrates Court, use of assisted dispute resolution, service of documents by the Court, and the scale of solicitors’ costs. Minor amendments were made to a number of other rules.

The Federal Court (Corporations) Rules 2000, which sets out the rules for proceedings in the Court under the Corporations Act and the ASIC Act, was amended in June 2003 to replace references to the Corporations Law and ASIC Law with references to the Corporations Act and ASIC Act, update references to particular provisions of the Corporations and ASIC Acts that have been renumbered or otherwise altered, suggest possible wording for an application and affidavit in support in a proceeding for the winding up in insolvency on the ground that the company has failed to comply with a statutory demand, and require a liquidator or provisional liquidator to disclose the hourly rates to be charged for work done in that capacity.

24 Chapter 3 – The Work of the Court in 2002 - 2003

Practice Notes supplement the procedures set out in the Rules of Court. During the reporting year, the Chief Justice issued a revised Practice Note No 7 on the listing of matters for hearing outside the Law Term. No new Practice Notes were issued.

Practice Notes are available without charge through District Registries and on the Court’s Internet home page. They have been reproduced in looseleaf services by law publishers. The Court has also published various notices to practitioners issued by the District Registries. These are available from the Court’s home page, the District Registries and in looseleaf legal services.

The Court also issues notices and guides on particular aspects of its practice and procedure. In December 2002, the Registrar issued the National Guide to Counsel Fees 2002–03 for the purpose of assisting the Court’s taxing officers when determining the amount of Counsel fees that might be recovered pursuant to a costs order.

Rules Revision Project

The project to revise the Court’s Rules is continuing. The project is being conducted by the Rules Revision Committee convened by Justice Lindgren, and is supported by a Deputy Registrar and an officer from the Office of Legislative Drafting. The goals of the project are for the Court’s Rules to:

(a) facilitate access to justice; (b) promote efficiency in the administration of the law; (c) complement and reflect the Court’s case management philosophy and systems; (d) take into account current and future advances in information technology (eg facsimile filing and electronic filing); (e) are easily capable of being updated; and (f) are simple and clear.

The revised Rules will contain a preamble in the nature of a statement of overriding objectives, and where practicable, will not use legal jargon or Latin terms.

Federal Court Workload in the General Federal Law Jurisdiction

The Court has concurrent jurisdiction with the Federal Magistrates Court in a number of areas of general federal law, including bankruptcy, human rights and migration matters. The registries of the Federal Court provide registry services for the Federal Magistrates Court in its general federal law jurisdiction.

As shown in Figure 3.1 below, the combined number of filings (excluding appeals) for the two courts has been increasing since the establishment of the Federal Magistrates Court in mid-2000. In 2002–03, a total of 8,388 first instance matters were filed in the two courts compared to a total of 5,885 in 1999–2000.

This increase has had a considerable impact on the Federal Court’s registries, which must process the documents filed in these matters, and provide the administrative

25 Federal Court of Australia – Annual Report 2002- 2003 support for each matter to be heard and determined by the relevant Court. The impact is even more significant when the following factors are also taken into account:

• each matter transferred from the Federal Court to the Federal Magistrates Court involves the registries opening and processing two files – in 2002–03 this occurred on 716 occasions; and • in 2002–03 the registries had to deal with 622 appeals to the Federal Court (of which 227 were from decisions of the Federal Magistrates Court) compared to 407 in 1999–2000.

Figure 3.1 Filings to 30 June 2003 (excluding appeals) Federal Court and Federal Magistrates Court

8,000

7,000

6,000

5,000

4,000

3,000

2,000

1,000

0 1999-00 2000-01 2001-02 2002-03

Fed Crt FMS Total

Caseflow management of the Court’s jurisdiction

The Court has adopted as one of its key caseflow management principles the establishment of time goals for the disposition of cases and the delivery of reserved judgments. The time goals are supported by the careful management of cases through the Court’s Individual Docket System, and the implementation of practices and procedures designed to assist with the efficient disposition of cases according to law.

Under the Individual Docket System, a matter will usually stay with the same judge from commencement until disposition, leading to greater familiarity with and more efficient management of the proceeding.

Disposition of matters other than native title

In 1999–2000 the Court set a period of eighteen months from commencement as the goal within which it should dispose of at least 85 per cent of its cases (excluding

26 Chapter 3 – The Work of the Court in 2002 - 2003 native title cases). The time goal was set having regard to the growing number of long, complex and difficult cases, the impact of native title cases on the Court’s workload, and a decrease in the number of less complex matters (such as winding up and related applications under the Corporations Law). It is reviewed regularly by the Court in the light of changes to the incoming workload and the resources available to dispose of that workload. The Court’s ability to continue to meet its disposition targets is dependent upon the timely replacement of judges.

Notwithstanding the time goal, the Court expects that most cases will be disposed of well within the eighteen month period, with only particularly large and/or difficult legal and/or factual cases requiring more time. Indeed, many cases are urgent and need to be disposed quickly after commencement. The Court’s practice and procedure facilitates early disposition when necessary.

During the five year period from 1 July 1998 to 30 June 2003, 89.2 per cent of cases (excluding native title matters) were completed in less than eighteen months, 82 per cent in less than twelve months and 64.3 per cent in less than six months (see Figure 5.4 on page 127). Figure 5.5 on page 128 shows the percentage of cases (excluding native title matters) completed within eighteen months over the last five reporting years. The figure shows that in 2002–03, 80.2 per cent of cases were completed within eighteen months. This compares to 90.8 per cent in the previous reporting year.

The decrease in the proportion of cases completed within eighteen months reflects the continuing change in the mix of cases dealt with by the Court since 2000–01. In particular, the proportion of complex cases that make up the Court’s workload continues to increase as simpler matters are commenced in, or transferred to, the Federal Magistrates Court. The longer time needed to resolve complex cases, coupled with the impact of the large number of native title matters, is affecting the Court’s ability to meet its goal of disposing of 85 per cent of matters within 18 months. However, the change in the mix of cases has started to lead to a reduction in the time to complete complex cases as more judicial resources become available to deal with them.

Special issues arise in native title matters. Information on the disposition of these matters is discussed on pages 37 to 40.

Delivery of judgments

In the reporting period, 1,882 Full Court and single judge judgments were delivered. Of these judgments, 498 were delivered by the Full Court and 1,384 by single judges. These figures include both written judgments and judgments delivered orally on the day of the hearing, immediately after the completion of evidence and submissions.

The nature of the Court's workload means that a substantial proportion of the matters coming before the Court will go to trial and the decision of the trial judge will be reserved at the conclusion of the trial. The judgment is delivered at a later date and is often referred to as a “reserved judgment”. The nature of the Court’s appellate work also means a substantial proportion of appeals require reserved judgments.

27 Federal Court of Australia – Annual Report 2002- 2003

The Court has set a goal for the delivery of judgments of three months from the date a judgment is reserved to the date when it should be delivered. The degree to which the Court is able to meet this goal depends on the complexity of each case in question and other issues, such as the pressure of the business upon the Court.

During the reporting period the median time between reserving and delivery of judgments was 35 days for Full Court appeals and 29 days for single judge matters. Almost 74 per cent of reserved judgments in Full Court appeals, and 76 per cent in single judge matters, were delivered within 3 months. It is important to note that these figures do not take into account the significant number of judgments in Full Court appeals and by single judges that are delivered on the day of the hearing. These calculations do not include the many decisions by registrars.

Decisions of interest

During the year the judges published over 1,880 decisions. As an illustration of the Court’s varied jurisdiction, Appendix 7 on page 141 includes a summary of the following decisions.

• Constitutional law – Parliamentary election – Petition challenging entirety of general election Gunter v Hollingworth (30 July 2002, Justice Cooper)

• Administrative Law – Judicial review of a decision to grant a licence to construct a nuclear reactor Greenpeace Australia Pacific v Chief Executive Officer of the Australian Radiation Protection Authority & Nuclear Safety Agency (13 September 2002, Justice Beaumont)

• Administrative law – Judicial Review of appointment of Chief Magistrate of Northern Territory North Australian Aboriginal Legal Service Inc v Bradley (27 September 2002, Chief Justice Black, Justices Drummond and Hely)

• Trade practices - Whether an advertising agency could be liable for misleading or deceptive representations as a principal rather than via accessorial liability. Cassidy v NRMA Health (3 October 2002, Justice Jacobson)

• Administrative Law – Royal Commissions – Role of the Court in reviewing the conduct of Royal Commission Ferguson v Cole (20 November 2002, Justice Branson)

• Native Title – Inconsistency between state legislation and the right to negotiate in the Native Title Act 1993 (Cth) Queensland v Central Queensland Land Council Aboriginal Corporation Attorney-General (Cth) v Central Queensland Land Council Aboriginal Corp (27 November 2002, Justices Beaumont, Lee and Kiefel)

28 Chapter 3 – The Work of the Court in 2002 - 2003

• Constitutional Law – Whether claims not justiciable or enforceable as requiring for their determination the adjudication of acts of State or the validity, meaning and effect of the transactions of foreign sovereign States Petrotimor Companhia de Petroles S.A.R.L v Commonwealth of Australia (3 February 2003, Chief Justice Black, Justices Beaumont and Hill)

• Trade Practices – Domain names and cybersquatting – Misleading and deceptive conduct CSR Limited v Resource Capital Australia Pty Ltd (4 April 2003, Justice Hill)

• Migration – Mandatory detention of unlawful non-citizen pending removal – whether continued detention is authorised when there is no real likelihood or prospect of removal in the reasonably foreseeable future Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (15 April 2003, Chief Justice Black, Justices Sundberg and Weinberg)

• Administrative law – Whether alleged denial of procedural fairness by Tribunal a question of law – Whether evidence admissible to establish denial of procedural fairness Clements v Independent Indigenous Advisory Committee (27 June 2003, Gray ACJ, Justices North and Gyles)

• Income tax – Whether an elite athlete was required to pay income tax on prize monies, grants, sponsorship and attendance fees Stone v Commissioner of Taxation (27 June 2003, Justices Heerey, Emmett and Hely)

• Trade Practices – Whether Safeway had taken advantage of its power in the wholesale bread market for the purpose of damaging competitors in the retail market or of preventing each of the bread manufacturers engaging in competitive conduct in contravention of the Trade Practices Act 1974 (Cth) Australian Competition & Consumer Commission v Australian Safeway Stores Pty Limited (30 June 2003, Justices Heerey, Sackville and Emmett)

The workload of the Court in its original jurisdiction

Incoming work

In the reporting year, 4,218 cases were commenced in the Court’s original jurisdiction, an increase of 294 compared to 2001–02. The increase in filings between the two reporting years was due principally to an increase in the number of migration matters (455 more filings) and corporations cases (114 more filings). These increases were partly offset by a decrease in filings in other areas of the Court’s jurisdiction, including bankruptcy (72 fewer filings) and native title cases (60 fewer filings).

29 Federal Court of Australia – Annual Report 2002- 2003

Matters transferred to and from the Court

Matters may be remitted or transferred to the Court under:

Judiciary Act 1903, section 44 Cross-vesting Scheme Acts Corporations Act 2001 Federal Magistrates Act 1999

During 2002–03, 667 matters were remitted or transferred to the Court:

641 from the High Court of Australia 0 from the Family Court of Australia 9 from the Federal Magistrates Court 17 from State or Territory Supreme Courts

Matters may be transferred from the Court under:

Federal Court of Australia Act 1976 Jurisdiction of Courts (Cross-vesting) Act 1987 Administrative Decisions (Judicial Review) Act 1977 Bankruptcy Act 1966 Trade Practices Act 1974 Corporations Act 2001 Administrative Appeals Tribunal Act 1975

During 2002–03, 736 matters were transferred from the Court:

0 to the Family Court of Australia 695 to the Federal Magistrates Court 38 to State or Territory Supreme Courts 3 to State District or County Courts 0 to State or Territory Local or Magistrates Courts

Matters completed

Table 5.2 on page 122 shows a comparison of the number of matters commenced in the Court’s original jurisdiction and the number completed. The number of matters (including bankruptcy matters) completed during the report year was 4,651, against 4,266 in the previous reporting year. The increase in the number of completed matters was primarily due to an increase in the number of matters transferred to the Federal Magistrates Court. If transferred matters are excluded, then the number of matters completed in 2002–03 is 3,935 compared to 3,941 in 2001–02.

Matters on hand

The total number of matters on hand in the Court’s original jurisdiction at the end of the reporting year was 3,662 (see Table 5.2 on page 122), being 467 fewer than for the previous reporting year. This decrease is due to the increase in the number of matters

30 Chapter 3 – The Work of the Court in 2002 - 2003 transferred to the Federal Magistrates Court, and the consequential increase in the Court’s capacity to complete the more complex matters which remain.

Age of pending workload

The comparative age of matters pending in the Court’s original jurisdiction (other than native title matters) as at 30 June for the reporting year and the four previous reporting years is set out in Table 3.1 below.

Native title matters are not included in Table 3.1 because:

• they are subject to a special three year time goal; • the majority of the 794 native title matters transferred to the Court on 30 September 1998, while deemed to have been filed in the Court on that day, continued to be substantively under the control of the NNT Tribunal for the purposes of mediation, completion of the registration test and other legislative requirements of the Native Title Act.

The age of pending native title matters is set out in Table 3.3 on page 39.

Table 3.1 Current matters (excluding Full Court appeals and native title matters)

Current Current Current Current Current Age of matter as at as at as at as at as at 30-Jun-99 30-Jun-00 30-Jun-01 30-Jun-02 30-Jun-03

under 6 month 1,859 1,709 1,894 998 1,403

6-12 months 809 896 676 656 459

12-18 months 278 355 324 846 207

Under 2,946 2,960 2,894 2,500 2,069 18 months 18-24 months 214 246 332 279 265

over 24 months 547 460 520 525 484 over 761 706 852 804 749 18 months

TOTAL 3,707 3,666 3,746 3,304 2,818

Table 3.1 shows the number of cases over 18 months old in the Court’s original jurisdiction (excluding native title matters) has continued to decrease from the peak of 852 as at 30 June 2001. As at 30 June 2003 there were 749 cases over eighteen months old compared to 804 on the same day in 2002. This decrease confirms the positive impact that the Federal Magistrates Court is having on the Court’s capacity to finalise more complex matters more quickly. The decrease is particularly significant given that 266 of the cases over eighteen months old are taxation matters which have been inactive pending the hearing and determination of a number of test cases.

31 Federal Court of Australia – Annual Report 2002- 2003

Table 3.1 also shows that the number of matters aged 12-18 months has returned to a level consistent with that which existed prior to 30 June 2002 when the unusually high number of taxation matters filed in 2000–01 produced an anomaly. The increase in matters aged under six months reflects the large number of migration cases remitted by the High Court to the Court in early 2003.

The Court will continue to focus on reducing its pending caseload and the number of matters over 18 months old.

A collection of graphs and statistics concerning the workload of the Court is contained in Appendix 5 to this report commencing on page 112.

The Court’s Appellate Jurisdiction

The appellate jurisdiction

The appellate workload of the Court continues to be substantial. While most of the appeals arise from decisions of single judges of the Court or the Federal Magistrates Court, some are in relation to decisions by State and Territory courts exercising certain federal jurisdiction.

Appeals from the Federal Magistrates Court may be heard by a Full Court of the Federal Court or by a single Judge. All other appeals must be heard by a Full Court, which is usually constituted by three, and sometimes five, judges. Any increase in the number of Full Court hearings adds to the workload of the Court and, as judges who sit on Full Courts have less time to devote to their own individual docket work, impacts on the Court’s ability to dispose of first instance work. Any substantial increase in Full Court work may result in a proportionate reduction in the Court’s ability to do trial work.

The Court monitors the effects on its workload of increases in the number of appeals and, as necessary or relevant, will introduce changes to appellate practice and procedure to ameliorate or limit these effects so that the Court continues to deal with its appellate and first instance work in an efficient, effective and timely manner. It may be necessary, in the near future, to suggest legislative changes to help manage the Court’s appellate workload, such as broadening the leave to appeal requirements.

Towards the end of each calendar year, the Court publishes its program of Full Court sittings for the following year. In the 2003 calendar year, four Full Court sittings have been programmed for Sydney, Melbourne, Brisbane, Perth, Adelaide, Canberra, Hobart and Darwin. Once appeal books are prepared by the parties, an appeal can usually be listed for the next scheduled Full Court sitting in the capital city where the matter was heard at first instance.

When appeals are considered to be sufficiently urgent, the Court will convene a special sitting of a Full Court, which may, if necessary and appropriate, hear the appeal in a capital city other than that in which the case was originally heard or use video-conferencing facilities. During the reporting year, 27 special Full Court

32 Chapter 3 – The Work of the Court in 2002 - 2003 hearings (totalling 15 hearing days) were held to enable the early disposition of urgent appeals.

The appellate workload

In 2002–03, 622 appeals were filed in the Court (see Table 5.3 on page 123). This was 19 appeals, or 3.1 per cent, more than the number of appeals in 2001–02. The number of appeals is dependent on many factors including the number of first instance matters disposed of in a reporting year, the mixture and the types of matters filed in the Court, and whether the jurisdiction of the Court is enhanced or reduced by legislative changes or decisions of the High Court of Australia as to the constitutionality of legislation.

The source of appeals has shifted significantly in the last twelve months. In 2001–02, there were 66 appeals from the Federal Magistrates Court, representing 10.9 per cent of the total number of appeals filed. In 2002–03, 227 or 36.5 per cent of the total number of appeals to the Court were against decisions of the Federal Magistrates Court. This change is primarily due to a greater proportion of migration cases being heard at first instance by the Federal Magistrates Court, many of which are then the subject of an appeal to the Federal Court. Further information on the source of appeals is set out in Figure 5.12 on page 134.

Although it is difficult to predict future appellate workload, the Court expects that the number of appeals is likely to increase in the next reporting year as a result of the increase in the number of migration matters being dealt with at first instance by the Court and by the Federal Magistrates Court.

In the reporting year, 645 appeals were completed, against 520 in 2001–02. The higher number is due to almost 85 per cent of appeals from the Federal Magistrates Court being heard by a single Judge, and changes to the type and complexity of appeals being heard by the Full Court.

As at 30 June 2003 there were 331 pending appeals, which is 3 less than for the previous reporting year.

The comparative age of matters pending in the Court’s appellate jurisdiction (including native title appeals) as at 30 June for the reporting year and the four previous reporting years is set out in Table 3.2 below. The table shows that as at 30 June 2003 there were 21 appeals over 18 months old – a small increase from the 19 appeals over 18 months old as at 30 June 2002.

33 Federal Court of Australia – Annual Report 2002- 2003

Table 3.2 Current Full Court appeals

Current Current Current Current Current Age of appeal as at as at as at as at as at 30-Jun-99 30-Jun-00 30-Jun-01 30-Jun-02 30-Jun-03

under 6 months 173 139 163 233 219

6-12 months 59 33 47 67 73

12-18 months 14 26 10 15 18 under 246 198 220 315 310 18 months 18-24 months 10 6 3 8 6

over 24 months 23 17 22 11 15 over 33 23 25 19 21 18 months

TOTAL 279 221 245 334 331

The Court’s workload in particular areas of its jurisdiction

Migration matters

In October 2001 the Migration Act was amended by the substitution of new provisions which gave the Court jurisdiction under sections 39B and 44 of the Judiciary Act to review ‘privative clause decisions’ made by the Migration Review Tribunal and the Refugee Review Tribunal. The Act provides that a ‘privative clause decision’ is a decision of an administrative character under the Migration Act, or regulations or other instruments made under the Migration Act, and that such a decision is final and conclusive and not subject to judicial review.

In last year’s annual report, the Court indicated that it expected that the number of migration matters commenced in the Court would decline once the effect of the privative clause has been determined and understood by those who advise migration applicants, and as a result of the Federal Magistrates Court exercising first instance jurisdiction in this area. However, in February 2003 the High Court in Plaintiff S157/2002 v Commonwealth of Australia found that an administrative decision involving jurisdictional error is not a privative clause decision, and that proceedings where the plaintiff asserts jurisdictional error may be commenced in the Federal Court and Federal Magistrates Court, and may be remitted by the High Court to the Federal Court. This decision led to:

• the High Court remitting 586 matters to the Federal Court that had been pending the decision in Plaintiff S157/2000; and • an increase in applications to the Federal Court (and the Federal Magistrates Court) as litigants realised they are not subject to the privative clause if relief is sought on the basis of jurisdictional error.

34 Chapter 3 – The Work of the Court in 2002 - 2003

The High Court has also ordered the remittal of a large number of cases that have been pending its decisions in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal. The number of cases that may be remitted pursuant to this order is expected to be in excess of 1,500. This will have a considerable impact on the workload of the Federal Court.

Prior to October 2001, most migration cases came to the Court pursuant to the scheme for judicial review provided by Part 8 (as it then was) of the Migration Act, and the Court’s annual reports contained details of only these cases. Since October 2001, most applications are made under the Judiciary Act. To permit a meaningful analysis of the Court’s migration workload for the period 1998–99 to 2002–03, in this annual report the migration workload for each year has been revised to include all applications for the review of decisions under the Migration Act, irrespective of the legislative basis for that review. The revised figures are set out in Figure 5.8 on page 131.

The number of matters concerning decisions under the Migration Act filed in, or remitted to, the Court’s original jurisdiction was 1,836 in 2002–03, compared to 1,381 in 2001–02. This increase was primarily due to the High Court remitting over 580 cases to the Court in February and March 2003. The number of migration cases would have been significantly greater but for the Federal Magistrates Court, in which 740 applications were commenced which would otherwise have been started in the Federal Court.

The Court has established specific procedures in New South Wales, Victoria and South Australia to deal with the large number of cases remitted to them by the High Court. In New South Wales and Victoria, matters are being listed before a single Judge to identify and dispose of any which will not be proceeding, transfer appropriate cases to the Federal Magistrates Court and allocate the remainder to the Judges’ dockets. In South Australia, where 365 matters were remitted, arrangements were made with the representatives of the parties for the management of the cases using standard orders for the filing and service of further documents followed by a directions hearing at which the Court may dispose of the matter, transfer it to the Federal Magistrates Court or set it down for hearing. It is proposed that matters proceeding to trial in South Australia will be listed for hearing at a rate of 10 per week every second week starting in July 2003.

To help manage its migration workload, the Court aims to complete migration matters at first instance within four months from the date of filing where the applicant was in migration detention, and within six months in other cases. In 2002–03, 68 per cent of cases involving an applicant in detention were completed within four months of filing, and 88 per cent of other migration cases were completed within six months of filing.

Migration Act matters also form a substantial and increasing proportion of the Court’s appellate jurisdiction. In 1998–99, 22.7 per cent of appeals concerned decisions under the Migration Act. This can be contrasted with 2002–03, where 66.5 per cent of appeals involved a review of a decision under the Migration Act. There was an increase of 73 in the number of appeals filed in 2001–02 compared with the number filed in the previous year.

35 Federal Court of Australia – Annual Report 2002- 2003

Native Title Matters

The native title jurisdiction

Since 30 September 1998 the Court has had responsibility for the management and determination of native title applications. The Court’s jurisdiction is discussed on pages 21 to 23. To perform these functions the Court has a wide range of powers in relation to the management and resolution of native title applications.

Under the regime, applications are filed in the Court and not the NNT Tribunal. Applications that satisfy the Court’s requirements are referred to the NNT Tribunal, which applies a registration test to determine whether the native title applicant has the right to negotiate. The NNT Tribunal will also mediate applications referred to it by the Court.

Strategic Management of Native Title Cases

Native title is widely recognised as a complex area of law with a developing jurisprudence. In addition to the legal complexity, native title litigation is frequently time consuming and resource intensive, involving a range of parties (including indigenous people, governments and industry) and various evidential issues (including the need to hear evidence in remote locations, and to take evidence from elders and other witnesses who may not be living by the time a matter comes to trial).

The Court is committed to ensuring that these complexities do not prevent the determination of claims within a reasonable timeframe. To this end, the Court has adopted an active approach to the effective and efficient management of native title cases, which aims to create and support a culture of activity and progress. The Court’s approach recognises the special and complex character of native title litigation and the need to adopt a strategic approach to the management these cases without compromising the independence of the Court in its decision-making. The Court uses a range of innovative strategies to assist the management of native title cases.

The features of this approach include:

- Native Title Coordination Committee - The National Allocation Protocol - The Native Title User Groups - The Native Title Time Goal - Other strategies, including Case Management Conferences and Early Neutral Evaluation

The Native Title Coordination Committee

The Native Title Coordination Committee consists of senior judges and staff of the Court. The Committee meets regularly and provides national planning advice to the Chief Justice and judges on the management of the native title workload.

36 Chapter 3 – The Work of the Court in 2002 - 2003

The national allocation protocol

The Court has a national allocation protocol for the case management and listing of native title matters. Under the protocol each case is allocated provisionally to a judge (“the Provisional Docket Judge”) who, with the assistance of a Deputy Registrar, is responsible for the initial management of the case. The provisional allocation usually continues while the matter is being considered for registration by the Native Title Registrar and, where relevant, while it is in active mediation with the National Native Title Tribunal. When the matter requires substantive action (such as the hearing of a contentious interlocutory application), or is ready for a main hearing, the matter is referred to the Court’s Native Title Unit for substantive allocation to a trial judge.

As at 30 June 2003, 321 native title matters had been substantively allocated, of which 199 were still active, and managed by judges of the Court.

The native title user groups

User groups have been established nationally and in each State and Territory, and at a national level, to facilitate regular consultation on the Court’s native title work. Each group includes representatives of native title claimants, industry groups, pastoralists, mining, fishing and other interests, and the governments of the Commonwealth and the relevant State or Territory. The user group meetings provide an important opportunity for parties and interest holders to help judges and staff of the Court to plan and improve the management and listing of native title claims. Importantly, these meetings focus on the need for practical and timely outcomes in current cases.

A number of user group meetings were convened during the reporting period, including a meeting of the National User Group in Melbourne in May 2003. The National User Group meeting focussed on an exchange of information on the progress of native title cases and consequent resource demands on applicants and respondents. The meeting also provided an opportunity for the judges of the Native Title Committee and attendees to discuss ways in which the Court could improve its case management of native title cases to support the realisation of its revised time goal.

The State and Territory user group meetings in 2002- 03 were well attended and involved discussions of the Court’s approach to its native title work. These meetings contributed significantly to the strategic management of native title cases as members of the user groups generally recognise that the meetings are an avenue for parties to set priorities so that their resources can be deployed in the most advantageous and efficient way.

Native Title Time goal

The Court originally set a time goal of three years from October 1999 or the date of filing (whichever was the later date) for the disposition of native title cases. To ensure its continued relevance as a performance measure, the time goal has been discussed extensively, including by the Native Title Coordination Committee and at the National User Group meetings the Court has convened.

37 Federal Court of Australia – Annual Report 2002- 2003

In has been generally agreed within the Court that it is desirable to keep a national target, while noting that this may be varied at a regional level in light of information provided by relevant native title user groups or regional case conferences. The adoption of local timeframe targets was seen as consistent with views expressed at the National User Group meeting, and has been applied successfully in number of regional case management conferences held subsequently.

In August 2002, an amended time goal was agreed at a meeting of all judges of the Court. The revised time goal is:

That the three-year time goal for disposition of native title matters be treated as a desirable objective for the time elapsed between substantive allocation and final determination, subject to factors beyond the control of the Court including resource limitations of the parties and related to that the need to establish regional priorities for mediation and litigation of applications.

Other Strategies

Regional Case Conferences

The Regional Case Conferences initiatives allow the judge or judges (sometimes sitting together) to explore the development of priorities and timeframes for mediation, negotiation and litigation on a regional basis and in so doing to consider regional priorities, interrelated claims and resource considerations. The regional case management conferences allow parties to inform the Court of their priorities on a regional, rather than on a case-by-case basis.

The timing of a Court ordered case conference is often crucial. One example during the year involved a very successful conference convened by the Court before referral of the case to mediation by the Tribunal. With the cooperation of the parties and the Tribunal, the Court used the conference to develop timeframes to progress the mediation of the claim. The purpose of the conference was to prepare the case for mediation (by refining the issues), to assist in the speedy, orderly and efficient progress of the mediation, and to establish the clear supervisory role of the Court in the process.

Mediation

The Court has been practising what has been described as “court – annexed mediation” since the late 1980’s. A practice has emerged in the Court where a Judge may refer an aspect of a native title case to a Registrar for a case management conference or mediation under the Federal Court Act and Federal Court Rules. To date this practice has been working favourably for the parties. Issues have been resolved without the need to resort to a contested Court hearing. Registrars of the Court will continue mediating some discrete issues in native title proceedings.

38 Chapter 3 – The Work of the Court in 2002 - 2003

Early Neutral Evaluation

Judges are also increasingly seeking informal procedures to encourage the parties to grapple with the issues with a view to assisting settlement. On occasions the Court itself may direct the use of early neutral evaluation (ENE) as an aid to mediation. In summary, ENE involves an informal and confidential process where an evaluator is selected by the parties (if there is no agreement the Court will nominate a person). The evaluator will consider the available evidence. Oral presentations may be made at an ENE and perhaps may be made by native title claimants themselves. The evaluator will offer an assessment in the form of a provisional non binding opinion on the strengths and weaknesses of the respective cases. All written and oral communications made in, or in connection with the ENE, are confidential.

Together with the mechanisms outlined above, the Court’s approach to managing native title cases, does, and will continue to involve the following general strategies: - requiring a high level of specificity in the timetabling of mediation and the enhanced use of the measures available to the Court and the NNT under the Native Title Act; - improved use of regional case management conferences; - identifying activities within applications at a regional level which may benefit from greater use of different case management strategies; - hearing of ‘early’ evidence from applicants (either for the limited purpose of preserving the evidence of applicants who are elderly or unwell or to test the issue of connection); - the use of early neutral evaluation as an alternative dispute resolution mechanism; - the management of some cases via the Court’s eCourt forum; and - exploring ways to reduce the costs incurred by the parties and the Court in the conduct of a native title hearing.

The native title workload Table 3.3 Current Native Title Matters (including appeals)

Current Current Current Current Current Age of matter as at as at as at as at as at 30-Jun-99 30-Jun-00 30-Jun-01 30-Jun-02 30-Jun-03 under 6 month 56 25 78 55 18 6-12 months 757 57 51 66 42 12-18 months 22 35 21 68 47 under 835 117 150 189 107 18 months 18-24 months 8 630 41 44 62 over 24 months 11 36 617 598 686 over 19 666 658 642 748 18 months

TOTAL 854 783 808 831 855

39 Federal Court of Australia – Annual Report 2002- 2003

It is important to note that the figures set out in Table 3.3 are based on all applications under the Native Title Act that have been filed in the Court and which remain open on the Court's data base FEDCAMS. However, in approximately 160 cases the individual case is effectively closed because it has been combined or consolidated with one or more cases and the matter is proceeding with a lead case. For these cases, the individual file has not been closed and remains 'open' for the purpose of the Court's database. The consolidation and streamlining of native cases often means that applications are dealt with as a single "active claimant application" with the consolidated or subsidiary files remaining open for practical purposes until the lead matter has been determined or finalised. In effect, this means that as at 30 June 2003, there were, in practical terms, 611 active native title claimant applications.

Active judicial case management of native title cases since 1998 has led to an substantial number of native title applications being amended, combined, withdrawn or discontinued. At 30 June 2003, of the 611 active claimant applications before the Court, the NNT was mediating 332. There were also 22 compensation claims.

Of the 611 active claimant applications before the Court, 528 have been notified. Under the Native Title Act, the Native Title Registrar must notify the public about native title applications, compensation applications, non-claimant applications or applications to register an indigenous land use agreement. Applications are notified to ensure that relevant people and organisations have the opportunity to apply to the Federal Court to become a party to the application and to participate in mediation. Once the notification process has been completed, the application may proceed.

During the reporting year, the Court made two determinations that native title exists. One determination that native title does not exist was made after a contested hearing, and another determination was made by consent after extensive mediation.

Notwithstanding that the Court heard evidence in 14 native title native title hearings comprising 24 claimant applications, the number of determinations was less than that in 2001–02.

As at 30 June 2003 there were a significant number of cases under substantive allocation, which were not progressing because of a range of a factors, including the ability and preparedness of State and Territory Governments to commit resources to the resolution of native title, the level of funding available to the Native Title Representative Bodies, as well as the general resource implications of conducting native title cases.

The Court is keenly aware of the need to reduce the costs involved in bringing a matter to closure and, at times has adopted a number of initiatives to achieve this. For example, where appropriate some judges have made orders requiring that evidence be video taped and then viewed by the Court and the parties at a venue determined by the Court, rather than hearing the evidence of some witnesses in the actual area under claim.

In the reporting period the Court has also commenced a process to evaluate the efficiency and effectiveness of its conduct of remote hearings. The Native Title Coordination Committee recognised that it is desirable for the Court to review the

40 Chapter 3 – The Work of the Court in 2002 - 2003 approach taken to conducting hearings “on country” and initiated an evaluation. Consultants with expertise in matters relevant to native title hearings were invited to evaluate the practice of conducting hearings, including the following: - the methods used to take evidence in native title cases; - the causes of excessive costs and delay; - the options to reduce costs and delays; - the procedures and case management initiatives used by the Court to manage the conduct of native title hearings; and, - the options for gathering evidence, including the taking of early evidence and the video taping of evidence.

The review will be completed during 2003-2004.

Native Title Decisions of Interest

During the reporting year, a number of decisions of the Court have given important consideration to provisions of the Native Title Act, and clarified the following:

- whether the authorisation of those named as the applicant in the particular native title claimant application had been revoked and what evidence the Court requires in order to be satisfied that the requirements of section 66B of the Native Title Act have been met. (See Lawson v Minister for Land and Water Conservation for New South Wales [2002] FCA 1517 per Stone J, 9 December 2002, Holborow v Western Australia [2002] FCA 1428 per French J, 20 November 2002, Ward v Northern Territory of Australia [2002] FCA 1477 per Mansfield J, 2 December 2002); - the proper role of the National Native Title Tribunal in all phases of the mediation of a claimant application and the approach the Court might take to ensure a more systematic and focussed approach to the progression of native title claims than has occurred to date (Frazer & Ors v Western Australia [2003] FCA 351 per French J, 17 April 2003); - the factors relevant to the Court’s consideration of an application to amend a native title claimant application made under section 64 of the Native Title Act (Harrington-Smith v Western Australia (No 5) [2003] FCA 218 per Lindgren J, 14 February 2003 and 19 March 2003); - the factors relevant to the Court’s consideration of an application brought pursuant to s. 84(5) of the NTA by a person or group of persons seeking to become a party to a claimant application. (See Kulkalgal People v Queensland [2003] FCA 163 per Drummond J, 28 February 2003, Birra Gubba (Cape Upstart claim) v Queensland [2003] FCA 276 per Drummond J, 28 March 2003, Bidjara People 2 v Queensland [2003] FCA 324 per Ryan J, 7 April 2003, Wilson on behalf of the Bandjalang People v Dept of Land & Water Conservation [2003] FCA 307 per Hely J, 9 April 2003).

41 Federal Court of Australia – Annual Report 2002- 2003

Assisted Dispute Resolution

The Court’s program of Assisted Dispute Resolution (“ADR”), which commenced in 1987, is of the type described as a court-annexed mediation program. The only matters dealt with in the program arise out of proceedings in the Court. Mediations are normally conducted by the Court’s registrars who have been trained as mediators. However, when parties wish to use the services of appropriately qualified external mediators, the Court facilitates their doing so. Figure 3.2 on page 43 below sets out the number of matters referred to mediators during the period 1998–99 to 2002–03. The program has proved popular, with a total of 3,114 matters referred to mediation since its commencement in 1987. Of that total, 1,495 were referred in the period 1998–99 to 2002–03, or an average of 299 referrals per reporting year.

The types of matters referred can relate to most matters in the Court’s jurisdiction. However, the majority of referrals have been in matters concerning trade practices, intellectual property, native title, taxation, workplace relations, bankruptcy and admiralty.

Prior to 17 April 1997, the program was based upon parties consenting to mediation. However, from that date, section 53A of the Federal Court of Australia Act was amended to provide for non-consensual mediation.

With the introduction of the Court’s Individual Docket System greater emphasis has been put on the early identification of cases suitable for ADR. In the reporting year 270 matters were referred to ADR.

The settlement rates of cases referred to mediation since the commencement of the program in 1987 has averaged 55 per cent. Settlement rates at mediation should not, however, be the sole criteria by which the program is evaluated. Many matters which do not settle proceed to trial with issues better defined, or on the basis of agreed facts settled by the parties with the assistance of the mediator. In some instances, the parties also agree that the Court should only be asked to determine liability or quantum. These types of results mean savings in costs to the parties and the Court.

42 Chapter 3 – The Work of the Court in 2002 - 2003

Figure 3.2

Assisted Dispute Resolution (ADR) 1998-99 to 2002-03 (matters referred for mediation)

347 350 312 300 288 278 270

250

200

150

100

50

0 1998-99 1999-00 2000-01 2001-02 2002-03

External Mediations

Seventy-six matters were referred to external mediators in 1998-99, 56 in 1999-00, 49 in 2000-01, 45 in 2001-02 and 39 in the reporting year. These figures are included in Figure 3.2.

Parties will often refer their case to external mediators without involving the Court. The Court does not keep a record of these mediations as they often occur without its knowledge.

Management of Cases and Deciding Disputes by Tribunals

The Court provides operational support to the Australian Competition Tribunal, Copyright Tribunal, Defence Force Discipline Appeal Tribunal and Federal Police Disciplinary Tribunal. This support includes the provision of registry services to accept and process documents for tribunal proceedings, collect tribunal fees (where payable), list matters for hearings, and to otherwise assist the management and determination of proceedings. The Court also provides the infrastructure for tribunal hearings, including hearing rooms, furniture, equipment and transcript services. A summary of the function of the tribunals and the work undertaken during the reporting year is outlined in Appendix 6 on page 136.

43 Federal Court of Australia – Annual Report 2002- 2003

3.3 IMPROVING ACCESS TO THE COURT AND CONTRIBUTING TO THE AUSTRALIAN LEGAL SYSTEM

Introduction

The following section reports on the Court’s work during the year to improve the operation and accessibility of the Court, including through reforms to its practices and procedures, enhancements in the use of technology and improvements to the information about the Court and its work.

This section also reports on the Court’s work during the year to contribute more broadly to enhancing the quality and accessibility of the Australian justice system, including through the participation of judges in bodies such as the Australian Law Reform Commission, the Judicial Conference of Australia and in other law reform and educational activities.

Practice and Procedure Reforms

The Practice Committee, (formerly known as the Practice and Procedure Committee), is responsible for developing and refining the Court’s practice and procedure. During the reporting year the Committee continued to work on the following key projects.

Review of Individual Docket System

The internal review of the Individual Docket System was completed, with the judges of the Court agreeing that:

• the Court should maintain the Individual Docket System; • flexibility in the administration of the Individual Docket System across the Court should be an accepted part of the system and, at this stage, no rules should be introduced to limit this flexibility; • the operation of the Individual Docket System in each registry should be reviewed annually, on a comparative basis, by the Judges in light of local reports provided by District Registrars and feedback from the Law Council of Australia and local practitioners; and • information about the Individual Docket System on the Court’s website should be reviewed to emphasise that any questions about the management of a case should be raised by the parties with the docket judge in the first instance.

Review of Guidelines for Expert Witnesses

The Committee also completed its review of the Practice Direction on Guidelines for Expert Witnesses introduced by the Court in September 1998. A revised Practice Direction was prepared in light of the feedback received from professions across Australia, including the Council of the Professions and the Law Council of Australia. The revised Practice Direction, which includes an explanatory memorandum, was issued on 4 September 2003.

In addition to these key projects, the Committee considered a number of other issues including the following.

44 Chapter 3 – The Work of the Court in 2002 - 2003

Costs in migration cases

The Committee considered whether there is any merit in the implementation of a short form bill of costs regime for standard migration cases. After considering the potential savings for parties and the Court, the Committee agreed in principle that a short form bill of costs be adopted as an option in standard migration matters which proceed to a hearing.

Consultation with Department of Immigration and Multicultural and Indigenous Affairs and the Law Council of Australia will be undertaken prior to any final recommendation being made.

Migration workload

The Practice Committee continues to monitor the migration caseload of each registry and any related procedural issues that may require change. In particular, the Committee has given careful consideration to the practice issues raised by the large number of cases remitted to the Court by the High Court following the High Court’s decisions in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002, Plaintiff S157/2002 v Commonwealth of Australia and Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal. The migration workload of the Court is discussed on page 34.

Private recording of court proceedings

This issue was put before the Committee as a result of the unauthorised recording of telephone directions hearings by self represented litigants in a proceeding in the Western Australian registry of the Court. The Committee has recommended that the Rules of Court be amended to provide that a private recording of a proceeding may only be made with the consent of the Court or a judge. Such consent may be subject to conditions. The proposed rule will also deal with the use of communication devices, such as two-way radios and mobile phones in a proceeding.

Liability of legal practitioners for costs

The Committee has recommended that the Rules be amended to, in effect, allow the Court or a judge to order a legal practitioner who is responsible for costs incurred improperly or without reasonable cause, or wasted by undue delay or by any other misconduct or default, to be liable for those costs. The amendment does not limit the broad discretion of the Court under section 43 of the Federal Court of Australia Act to make costs orders against non parties.

Other issues

Other issues considered by the Committee included:

• a new Practice Note concerning Lists of Authorities and Legislation and a revised version of Practice Note No 1 on appeals; • access by non parties to court documents;

45 Federal Court of Australia – Annual Report 2002- 2003

• taking overseas evidence by video link; • legislative immunity for court appointed experts; • security for costs of taxation; • directions hearing and docket judge evaluation of the subject matter of the proceedings; • discovery by category; • reference of matters to external referees; • interlocutory injunctions and the timeliness of final trial; • forum shopping; • use at trial by one party of statements filed by another pursuant to a pre-trial order; • ‘novel’ directions and orders absent of proof in intellectual property cases; • the need for a leave to appeal requirement for migration appeals; • assisted dispute resolution and the use of court facilities; and • issues arising from Court statistics and procedures in migration, human rights and corporations matters and transfers to, and appeals from, the Federal Magistrates Court.

The Committee met during the reporting year with the Law Council’s Federal Court Practice Committee to discuss matters concerning the Court’s practice and procedure, including:

• event based fee scales; • experts; • costs and the revised approach in the United Kingdom to awarding them; • the operation of the Individual Docket System; • filing of documents; • native title; and • the Court’s scheme for the referral of litigants for legal assistance.

Assistance for Self represented Litigants

In recent years the growing number of self represented litigants has presented a range of problems for the Court. The complexity of the substantive law in a developed society, and statutory and judicial elaboration of procedural fairness and efficiency, make it difficult for many kinds of litigation to proceed in the most efficient way for all parties and the Court without the parties being legally represented.

In 2002–03, about 38 per cent of matters in the Court involved at least one party who was not represented at some stage in the proceeding. This is particularly common in migration cases (where about 40 per cent of cases involve a self represented litigant) and bankruptcy (about 20 per cent). Further information is set out in Figure 3.3 and Table 3.4 below.

In August 2002 the Court adopted a Self Represented Litigants Management Plan which identifies a number actions as to how some of the problems raised in respect to self represented litigants may be addressed. These actions include:

46 Chapter 3 – The Work of the Court in 2002 - 2003

• improving the collection by the Court of information on self represented litigants and their needs;

• reviewing the Court’s rules, forms, brochures and guides to ensure they are written in clear language and are simple to use;

• providing further staff training on providing appropriate advice assistance to self represented litigants, and on handling difficult situations involving self represented litigants; and

• improving the rules and practices for dealing with self represented litigants who are considered to be vexatious, frivolous or of a repeat kind with clearly hopeless cases.

The Court is also enhancing the content and location of information on its web site to provide greater assistance to self represented litigants, including details of possible sources of legal advice and assistance.

Figure 3.3 Yearly filings 1998–99 to 2002–03 in which at least one party was a Self Represented Litigant

50%

41.0% 40% 37.7% 35.7% 32.4%

30% 27.9%

20%

10%

0% 1998-99 1999-00 2000-01 2001-02 2002-03

47 Federal Court of Australia – Annual Report 2002- 2003

Table 3.4 Filings in which at least one party was a Self Represented Litigant

Total Cases involving Self Represented Litigants Year Cases Yes No Unknown

1998–99 8,046 2,246 27.9% 1,895 23.6% 3,905 48.5%

1999–00 6,280 2,035 32.4% 1,672 26.6% 2,573 41.0%

2000–01 5,395 1,927 35.7% 2,257 41.8% 1,211 22.5%

2001–02 4,528 1,858 41.0% 1,819 40.2% 851 18.8%

2002–03 4,840 1,827 37.7% 2,158 44.6% 855 17.7%

Interpreters

The Court is aware of the difficulties faced by litigants who have little or no understanding of the English language. The Court will not allow a party or the administration of justice to be disadvantaged by a person’s inability to secure the services of an interpreter. It has therefore put in place a system for providing professional interpreter services to people who need those services but cannot afford to pay for them. In general, the Court’s policy is to provide these services for litigants who are unrepresented and who do not have financial means to purchase the services, and for litigants who are represented but have exemption from, or have been granted a waiver of fees under, the Federal Court of Australia Regulations.

Remission or Waiver of court and registry fees

Under the Federal Court of Australia Regulations, fees are charged for commencing a proceeding and for setting a matter down for hearing (including a daily hearing fee). A setting down fee is not payable on all matters and the amount of the daily hearing fee will vary depending on the nature of the hearing. The court fees were increased on 1 July 2002 in accordance with regulation 2AC, which provides a formula for increasing specific court fees every two years from 1 July 1996.

The Federal Court of Australia Regulations authorise registrars to remit or waive fees payable where a person:

• has been granted legal aid by a body approved by the Attorney-General; or • is the holder of a health care card, a health benefit card, a pensioner concession card, or a Commonwealth seniors health card; or • is the holder of any other card issued by the Department of Social Security or the Department of Veterans Affairs certifying entitlement to Commonwealth health concessions; or • is an inmate of a prison or is otherwise lawfully detained in a public institution; or • is a child under the age of 18 years; or • is in receipt of an AUSTUDY allowance; or

48 Chapter 3 – The Work of the Court in 2002 - 2003

• is in receipt of an ABSTUDY allowance.

Registrars also have a discretion to waive or remit a fee where a payment would cause financial hardship to a person, taking into account the person's assets, day-to-day living expenses, income and liabilities. A registrar's decision to refuse an application to waive a fee is reviewable by the Administrative Appeals Tribunal. In August 2001 the Tribunal set aside a registrar’s decision to refuse an application to waive a filing fee, and in substitution decided that filing fees payable by the applicant be waived. There were other applications to the Tribunal during the reporting period.

Details of the fees exempted or waived during the reporting year are set out in Appendix 1 on page 105.

Gender Issues

Since 1993 there has been a standing committee of judges of the Court which considers and advises the Chief Justice and other judges of the Court on a wide range of issues related to gender, including gender issues within the administration and practice and procedure of the Court. The Equality and the Law Committee also provides advice on judicial studies on gender issues. During the reporting year, the Committee was chaired by Justice Madgwick.

The Committee oversaw a number of activities related to gender issues, including active engagement with Bar Councils and the continued practice of meeting with women practitioners. This liaison is important to assist the Court to identify and address difficulties which women practitioners may experience in their contact with the Court.

In terms of the Court’s internal operations, the Committee has continued to give close consideration to the Court’s efforts to ensure greater representation of women in senior positions in the Court and to ensure that the Court’s employment conditions accommodate the needs, circumstances and family commitments of its staff as far as practicable. The Court’s achievements in this area were recognised during the year with a high commendation in the Work and Family Awards, sponsored by the Australian Chamber of Commerce and Industry.

Disability, race and sex discrimination

The Equality and the Law Committee's terms of reference include oversight of the Court's practice and procedure and general administration to ensure that in all of the Court's operations, persons who have contact with the Court are treated fairly and equitably and, where necessary, appropriate additional assistance is provided to people who may face particular disadvantage in their access to the Court. The Committee also considers disability, race and sex discrimination issues as they may affect staff of the Court.

49 Federal Court of Australia – Annual Report 2002- 2003

The Committee undertook a range of activities in this area during the reporting year, including:

• monitoring issues arising from the Court’s human rights jurisdiction and, particularly, issues related to the capacity of the Court’s practice and procedure to respond to the particular needs of parties in human rights cases; • overseeing the work of a subcommittee considering the Court’s management of cases involving self represented litigants; • overseeing the development, finalisation and implementation of the Court’s workplace harassment policy, including training provided to registry staff; • overseeing the management of the Court’s pro bono legal assistance scheme – this scheme facilitates the provision of assistance to unrepresented litigants in appropriate cases many of whom are involved in migration matters. The judges refer such litigants to legal practitioners who are prepared to give legal advice and assistance for no, or a reduced, fee; • overseeing strategies to improve employment opportunities in the Court for women, and for Aboriginal people and Torres Strait Islanders. In terms of the latter, the Committee has overseen the continuation of a scheme to employ indigenous research associates in the Court, and; • investigating options to ensure that counsel, witnesses and staff have access to suitable child care arrangements, as a result of which details of child care centres within near proximity of the Court in each capital city have been placed on the Court’s web site. eCourt Strategy

In line with its commitment to ensuring that the Court is relevant and responsive to the needs of the Australian community in the 21st century, the Court has continued this year to build on its eCourt strategy. The eCourt strategy was introduced by the Court in 2001 and aims to improve access to the Court by applying new and emerging technology to its practices and procedures. The strategy builds on the Court’s established reputation for pioneering the application of technology in its work.

The eCourt Strategy comprises the following major initiatives which have been enhanced during 2002-03.

The eCourt Forum eCourt is a web-based courtroom that assists in the management of pre-trial matters by allowing directions and other orders to be made on-line. Using eCourt, the Court may receive submissions and affidavit evidence and make orders as if the parties were in a normal courtroom. eCourt can be accessed via the Court's homepage at www.fedcourt.gov.au and selecting the eCourt prompt. It includes an on-line Tutorial and a Public Transcript facility. The Tutorial prompt provides access to a self-paced guide that explains how to use eCourt. The Public Transcript facility provides access to matters that have been dealt with on eCourt, as well as an electronic transcript containing a record of all messages posted by the presiding judge and parties to the eCourt in the selected matter.

50 Chapter 3 – The Work of the Court in 2002 - 2003

The Electronic Filing System The Court’s Electronic Filing System (EFS) allows users of the Court to send documents to the Court and, where appropriate, receive them back signed and sealed, electronically. The Federal Court Rules supporting electronic filing also allow parties to serve documents, other than the originating process, by electronic means to a party’s nominated email address for service.

The EFS is accessed through the Court’s homepage and incorporates a step-by-step guide to lodging a document electronically and payment facilities for the payment of filing fees on-line, by credit card. A system of online registration for frequent users has been introduced to minimise the information that regular users are required to provide.

Ongoing feedback from users has resulted in further enhancements to the system, including notification to clients of receipt and acceptance/rejection of their documents, capacity for users to amend their registration details and the inclusion of a comments box to enable users to communicate with court staff as part of the filing process.

Electronic Trials and Appeals

Electronic trials and appeals are court proceedings where the majority of documents and related papers are stored and accessed electronically throughout the conduct of the proceedings. Electronic trials are also known as ‘paperless courtrooms’ because the use of paper copies of documents is kept to a minimum.

During 2001-02, the Court piloted a completely electronic trial at first instance in the case of Peter De Rose v Fuller and the State of South Australia presided over by Justice O’Loughlin. Most of the trial was heard in a remote location in an area 470km south of Alice Springs, with staff of the Court supervising the majority of the technical aspects. A review of the pilot electronic trial has informed the development of eCourt particularly through:

• examining issues of standards and protocols for courtroom technology; and • identifying best practices in respect of standards, costs, and courtroom technology.

From the De Rose case the Court has identified a number of areas which are critical to supporting electronic trials, including data consistency and integrity, and a high level of support by the Court to assist applicants and parties to access and use the technology. Further, the Court is now better placed for ensuring appropriate planning of an electronic trial or appeal, including for cost effectiveness.

The Court proposes to issue guidelines and practice notes to practitioners and parties to assist in their consideration of whether a trial ought to be conducted electronically. The guidelines will include information on relevant technical issues.

The Court is also working towards piloting the use of electronic appeals, which require the production of an electronic appeal book, which can involve merging paper

51 Federal Court of Australia – Annual Report 2002- 2003 and electronic files used in the trial into appropriate electronic form. The Court intends to test an assumption that appeals may be conducted more efficiently if electronic appeal books are used. The Court will also need to assess the level of technical and other assistance which parties might need in converting documents and also the implications for standardising the technology to be used.

Electronic Courtrooms & Hearings The Court has made significant progress in enhancing existing courtrooms and developing new courtrooms that are electronically flexible and able to cater for integrated electronic trials, with connection to the Court’s network and the Internet, and the integration of audio, video and data communications and information.

Accessibility technologies are also being progressively implemented, including hearing loops, audio and video systems, voice reinforcement systems, teleconferencing and videoconferencing systems and CCTV linkage to other courtrooms and spaces to enable public viewing and media coverage.

Video-Conferencing Video-conferencing continues to play a key role in supporting the work of the Court, which was the first Australian court to implement a national video-conferencing network in 1993. Since then, video-conferencing has become an integral part of the work of the Court and ensures that the Court is able to operate on a national basis without being constrained by distance. Video-conferencing has also reduced the cost and time of witnesses giving evidence and enabled more effective management of cases by presiding judges who may be at a location away from the normal place of sitting. Importantly, the Court recognises that video-conferencing facilities are increasingly relevant to ensure participation from rural and remote localities in matters before the Court.

During the year, video-conferencing was used in more than 550 hearings by the Court and by the Federal Magistrates Court, maintaining the trend of increasing use of this technology. It has been particularly useful in assisting both the Federal Court and the Federal Magistrates Court in conducting hearings in migration cases. In many instances video-conferencing has provided the means of linking judges or magistrates with legal representatives located in other states and providing applicants with the ability to be present during proceedings, including those applicants located in the migration detention centres in South Australia and Western Australia.

To support the current level of use, two video-conferencing systems are employed in the Court’s larger registries enabling concurrent video-conferencing to be conducted when required.

In the coming year, it is intended to replace the current, original video-conferencing systems with new technology that will enhance systems, through increased useability and reduced maintenance costs. In the longer term, these enhancements will also enable the Court to extend its video-conferencing capability across the Court. The Court will also be working to improve the integration of video-conferencing with other technology used by judges in the courtroom.

52 Chapter 3 – The Work of the Court in 2002 - 2003

Managing the eCourt Strategy The Court recognises that there will be challenges involved in the continued implementation of the strategy and that these need to be managed proactively, consultatively and innovatively. The Court's web site will continue to provide information to court users and the broader community on the progress of the eCourt Strategy and will provide an opportunity for feedback.

An important component in managing the different technology involved in the strategy will be through the implementation of the Court’s new case management system, Casetrack, which, amongst other things, will integrate eCourt initiatives with the Court’s primary source of statistical, operational and other essential management information.

Remote hearings

Where appropriate, the Court will conduct hearings in remote locations. For example, in a number of native title cases the Court has travelled to remote areas of Western Australia, Queensland and the Northern Territory to take evidence from witnesses who may not otherwise be able to attend the Court.

Public Information

Court’s Internet Home Page

The Court’s web site at www.fedcourt.gov.au has become a primary source of information to the legal community and the public. In addition to links to a wide range of legal resources, the web site contains helpful information about the Court and its work including full text judgments, daily court lists, practice and procedure guides, forms and fees, community information and new initiatives. It also provides access to the electronic filing system and eCourt. The site has been recognised by the legal profession as providing an excellent single point of access to legal resources in Australia and overseas.

The Court has sought accreditation from Vision Australia and will be the first Australian court to be recognised for conformance with the global standards for web content accessibility released by the World Wide Web Consortium (W3C).

The Court will continue to provide new and additional resources and services to the public via the web site. Information, resources and services that might be considered as a starting point and which are consistent with the eCourt philosophy are: • interactive forms; • assistance with filing and templates; • plain English guides to the Court’s practice and procedure; • information in community languages; • videos of court procedures, taking evidence, etiquette, stages of litigation etc; • glossaries of legal terminology; • on-line help connecting the public to a member of staff (such as a registrar); and • a step-by-step guide for self represented litigants with links to all outside sources of information and assistance (eg legal aid, community legal centres).

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Published Information

The Court publishes a number of brochures for court users on aspects of its work, including a guide for witnesses appearing in the Court and information on procedures in bankruptcy, native title and human rights cases and on the Court’s use of mediation. These brochures are available from any of the Court’s registries. Similar information is available on the Court’s web site.

Access to judgments

When a decision of the Court is delivered, a copy of it is immediately made available to the parties and the media. The Court provides electronic copies of judgments to legal publishers and other subscribers.

Judgments are also available on the Internet at the Australasian Legal Information Institute (“AustLII”) site. These judgments are accessible directly from the Court’s home page. The availability of judgments electronically assists the speedy dissemination of the Court's judgments to the legal and wider community.

Information for the Media and Televised judgments

Through the Court’s Director, Public Information, assistance is provided to journalists covering Federal Court cases and issues related to the Court’s work. This includes managing access to court proceedings by television news outlets in matters of public interest. Notable cases in the reporting year included:

• Mastercard International Incorporated versus the Reserve Bank of Australia, and Visa International Service Association versus the Reserve Bank of Australia, regarding their challenge to the bank’s decision to regulate the credit card market (Justice Tamberlin); and

• Francis Djaigween and others on behalf of the Yawaru/Djugin and Goolarabooloo People versus the State of Western Australia - a major native title case in and around Broome (Justice Merkel).

Vision recorded in such cases is maintained by the Court and can be used in video productions that assist in a greater understanding of its work.

A key initiative during the year was a 25-minute video/CDROM commemorating the Court’s 25th anniversary in 2002 which featured interviews with the Attorney- General, retired and present judges of the Court, as well as historic and contemporary material about the Court.

The Court has a Media Management Committee which has provided, and continues to provide, advice to the Chief Justice and judges on how to deal with issues concerning media coverage of court proceedings and related matters.

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Community Relations

The Court is actively engaged in a program of national strategies to enhance public understanding of the Court and its work, as well as confidence in the justice system and courts more generally. As well as one off projects, these strategies include ongoing initiatives such as regular meetings at a national and local level with different users of the Court, as well as a program of engagement with schools and other educational and community organisations. The following highlights some of the significant activities during the year.

The Art of Delivering Justice – Curriculum materials and Art Competition

In 2001-02 the Court reported on a major community relations project to develop national curriculum materials for Australian secondary schools on issues such as the Australian court system and its relationship to Parliament, the independence of the judiciary and particular areas of the Federal Court’s work. The materials, The Art of Delivering Justice - Resources on Law and Justice in Australia, were distributed to every secondary school in Australia and the materials are also now being used by many primary school teachers.

To coincide with the release of the Curriculum materials, the Court initiated a national art competition for Australian secondary students. In July 2002, the Chief Justice awarded prizes at a ceremony in Melbourne involving a national videoconference hook-up with entrants around the country which linked secondary school children in Broome, Hobart, Perth, Bundaberg, and Canberra.

Competition winners also travelled from New South Wales and South Australia to attend and all artwork was on display in the Court’s building. The Court used one of the winning artworks on the cover of its 2001-02 Annual Report.

User Groups

The Court has continued its involvement in user groups to provide an opportunity for information exchange with practitioners and other people with an interest in particular areas of its jurisdiction. During the year meetings were held with local law societies and bar associations in the states and territories and regular liaison meetings were held between the Practice Committee and the Law Council of Australia. User group meetings for general Court users, as well as in specific areas of the Court’s jurisdiction, such as migration, corporations (including bankruptcy), admiralty, intellectual property and trade practices were also held.

Activities with the Community

During the year the Court was involved in the following activities with schools, students and community organisations.

In Western Australia, registry staff conducted information sessions for Murdoch University indigenous pre-law students and for Aboriginal Liaison Officers from the Jamatji Land and Sea Council. A moot competition for the University of Western Australia was held at the Court and judged by Justice French and a trial advocacy

55 Federal Court of Australia – Annual Report 2002- 2003 competition for Murdoch University students was also held and judged by Justice Nicholson. Justice Nicholson also delivered a Minter Ellison talk to law students.

In Victoria, a moot court was conducted by Justice North for students from Presentation College in Windsor and there were four school visits to the Court conducted by registry staff which covered the operation of the Court.

In South Australia, the registry conducted a seminar on native title issues for secondary school students during Law Week and ran an information seminar on the Court for secondary school teachers.

In Queensland, the registry was involved in the Legal Practice Course at the Queensland University of Technology. Two moot courts were also arranged for students enrolled in the Course. Visits by schools were also conducted during the year.

In NSW, various presentations on eCourt were made during the year to members of the legal profession. There were also a number of visits to the Court by schools and by legal studies students. Two of these groups from Tranby Aboriginal Cooperative College received presentations on the Court’s native title work.

Complaints about the Court’s processes

During the reporting year 22 complaints were made to the Court in relation to its procedures, rules, forms, timeliness or courtesy to users. This figure does not include complaints about the merits of a decision by a judge or the Court, which may only be dealt with by way of appeal.

Cross-vesting Monitoring Committee

The Chief Justice of the Federal Court is the Convenor of the Cross-Vesting Monitoring Committee. The other members of the committee, usually judges, are the nominees of the Chief Justices of the Family Court of Australia and the Supreme Courts of the States and Territories. The purposes of the Cross-Vesting Monitoring Committee are:

• to monitor and compile statistics on the operation of the cross-vesting scheme; • to identify problems in the operation of the scheme and to consider how they may be resolved; and • to consider, in the light of the experience of the operation of the scheme, possible improvements to it.

The Cross-Vesting Monitoring Committee prepares a report each year for the Council of Chief Justices.

Involvement in legal education programs and legal reform activities

The Court is an active supporter of legal education programs, both in Australia and overseas. Information about the Court’s engagement with legal education programs for international jurisdictions is described below. During the reporting year, the Chief

56 Chapter 3 – The Work of the Court in 2002 - 2003

Justice and many judges and registrars presented papers, gave lectures and chaired sessions at judicial conferences, judicial administration meetings, continuing legal education courses, university law schools, participated in Bar reading courses, Law Society meetings and other public meetings. An outline the judges’ contribution in this area is included in Appendix 8 on page 158.

3.4 WORK WITH INTERNATIONAL JURISDICTIONS

Introduction

The Court is extensively involved in providing judicial and non-judicial support to assist the continuing development of international jurisprudence. Activities include individual judges holding second commissions in overseas courts (listed on pages 4- 7), participation in international committees and conferences, involvement in legal education programs that provide training to judges and staff of overseas courts, and provision of library services to countries of the South Pacific. The following outlines the major areas of this work during the reporting year.

Legal Education Programs

Indonesia

During 2002-03, the Federal Court, with the Supreme Court of Indonesia, conducted its fourth training program for the Indonesian judiciary, with the assistance of funding of more than $530,000 from the AusAID’s Legal Reform Program. The Court has conducted a similar program annually since 1999 with AusAID funding. Each successive program has built on the achievements of, and lessons learned from, the previous program. A major review of the program was also undertaken in May 2002. Critical to the success of the program is the strong relationship the Court has developed with the Indonesian judiciary and its primary training facility, the Research and Development Centre (RDC) at the Supreme Court of Indonesia. The Court also worked closely with Australian Legal Resources International in Sydney to deliver the program.

The fourth program delivered five workshops in Indonesia for judges from Jakarta and regional Indonesia. The workshops were conducted by Justice Lindgren of the Federal Court, Justice Wood, Chief Judge at Common Law of the NSW Supreme Court and Justice O’Mealley, President of the Dust Diseases Tribunal of NSW. The workshops involved 193 Indonesian judges and covered the Australian legal system, judicial independence, Assisted Dispute Resolution (ADR), class actions and the use of information technology in Australian courts. From 24 March to 10 April 2003 the program included a three-week study tour in Australia for 14 judges who had participated in the training in Indonesia, as well as judges from the Supreme Court. The program was undertaken in Sydney and Melbourne and involved training provided by the NSW Judicial Commission and the Australian Institute of Judicial Administration (AIJA), as well as a week of presentations and meetings with the Federal Court and visits to other institutions.

The program also provided specialist legal interpreting training to interpreters in Jakarta and Australia to develop a pool of specialist interpreters who will be available

57 Federal Court of Australia – Annual Report 2002- 2003 to assist the Court’s and other legal development programs for Indonesian justice system.

At the conclusion of the program in May 2003, at AusAID’s and the Supreme Court’s request, the Court, with ALRI’s assistance, developed a fifth program which will be conducted between August 2003 and April 2004. This program will include similar components and importantly, the development of a Memorandum of Understanding between the Federal Court and the Supreme Court of Indonesia which will provide a framework for ongoing cooperative engagement. There is also a strong prospect that the Court’s program will continue in future years through funding from AusAID’s further commitment to legal reform programs in Indonesia.

Philippine Judicial Exchange Program

The Court has continued its engagement in judicial exchange activities with the Supreme Court of the Philippines, through a program funded by the Centre of Democratic Institutions (CDI) at the Australian National University (ANU). The Court’s role has included hosting visits by groups of judges from the Philippines and visits by Australian judges to the Philippines to conduct workshops.

In October 2002 the Court hosted another visit by six judges to both Sydney and Melbourne. This visit followed three previous visits to Sydney in 2000 and 2001. Justices Beaumont and Emmett in particular, have been involved in arranging these visits.

Visit by judges from East Timor

With funding from the CDI, the Court arranged a visit by two judges, Judge Duarte Soares Tilman and Judge Deolindo Dos Santos, from East Timor to Darwin from 28 May to 2 June 2003. The visit was hosted by Justice Marshall of the Court and included attendance at the Judicial Conference of Australia’s Colloquium and several days of meetings and visits with courts in Darwin. The conference and meetings provided an opportunity for the East Timorese judges to learn about the Australian judicial system and share information and experiences with Australian magistrates, judges and lawyers.

Exchange Program with the Supreme Peoples’ Court of Vietnam

Since 1999, the Court has also been involved in judicial development activities with the Supreme Peoples’ Court of Vietnam. Justices Moore and Tamberlin have been active in promoting the Court’s engagement with the Vietnamese judiciary and were instrumental in the development of the training program, which is funded by the CDI and run in cooperation with the Judicial Training Institute in Hanoi. The Court has hosted three visits in Sydney under the program - in 2000, and 2001, and a further visit in November 2002. These visits have focussed on substantive legal issues.

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China

The Court continues its interest in engaging with courts of the People’s Republic of China. The Court received a number of visits during 2002-03 from delegations from Chinese courts. In return, judges of the Court and court officials have made visits in recent years to China to discuss issues of mutual interest and possible opportunities for further engagement between Australian and Chinese judiciaries. The Registrar of the Court visited China in 2001 and in May 2002 for this purpose. In April 2003 a high level official delegation from Beijing visited the Court in Sydney and Melbourne to continue the exchange.

South Pacific

Justice Beaumont is a member (representing Australia and New Zealand) of the Steering Committee of the Pacific Judicial Education Program, based at the University of the South Pacific in Suva. The program is funded by a partnership of the governments of Australia and New Zealand and facilitates judicial education activities for judges of the region.

During the year, the Court also received an AusAID grant to support the participation of three senior judges from the Solomon Islands, Papua New Guinea and Fiji to attend the Supreme Court and Federal Court Judges’ Conference in Adelaide in January 2003. This was the second year the Court had facilitated this assistance.

Canada

At the invitation of Public Works and Government Services Canada, the Registrar of the Court worked in Canada for one month during September and October 2002. The Registrar provided assistance and advice concerning a proposal to construct a new Federal Judicial Building in Ottawa which will house all of the National Capital Area operations of the Federal Court of Appeal, the Court Martial Appeal Court, the Federal Court and the Tax Court of Canada. The Registrar was able to provide valuable advice and insight to the Departments of Justice and Public Works and Government Services, as well as the Commissioner for Federal Judicial Affairs and the Courts, using the Federal Court of Australia’s recent experience in innovative development of its buildings, procedures and administration. All of the costs (including remuneration) were paid by the government of Canada.

Participation in international committees and conferences

A number of Federal Court judges actively participated in international committees and conferences during the reporting year. Some of this work is included in the list of judges’ activities in Appendix 8.

5th Worldwide Common Law Judiciary Conference

Between 7 and 11 April 2003, the 5th Worldwide Common Law Judiciary Conference was held at the Court in Sydney. The Conference was hosted jointly by the High Court of Australia, the Federal Court and the Supreme Court of New South Wales. Senior members of the judiciary from 10 common law countries attended the

59 Federal Court of Australia – Annual Report 2002- 2003

Conference. They included the Lord Chief Justice of England and Wales, the Chief Justice of New Zealand, the Chief Justice of Ireland, the Lord Justice Clerk of Scotland, the Chief Justice of the Federal Court of Canada and the Chief Justice of Nova Scotia. The Conference was also attended by the Chief Justice of Australia and the Chief Justices of many of the States or their representatives.

Library services to the South Pacific and Thailand

The Court has been operating a program of ongoing assistance to libraries in the South Pacific since 1992, funded both by the Court and AusAID grants. In March 2003, the Court was successful in receiving a further AusAID grant of $107,500 over 5 years to provide regular assistance over the next five years to law libraries in Vanuatu, Kiribati and Tonga. The libraries will receive law reports, catalogues and material donated by Australian law libraries which is dispatched twice a year. The grant will also fund visits to each court by a professional law librarian who will train local staff and review collections.

In addition, the Court supports a specialist intellectual property court in Thailand, sending regular shipments of reports and textbooks. Further, this year the Court also sent a special donation of superseded textbooks from a retiring NSW Supreme Court judge to Fiji to be shared amongst three libraries.

Visitors to the Court

The Court was visited by a significant number of judges and officials from overseas jurisdictions. These visits provided the judges and staff of the Court with an opportunity to develop relationships and learn from people involved in the administration of justice around the world. The number of visits reflects the international reputation of the Federal Court as a leading court, in its administration and its practice and procedure.

During the reporting year over 221 visitors from the following countries came to the Court, more than half of these to Sydney. These visits require significant planning and coordination by judges and Court staff. Visitors came from: Bangladesh; Canada; East Timor; Fiji; France; Germany; Indonesia; Ireland; Japan; Malaysia; New Zealand; Pakistan; Peoples Republic of China; Philippines; South Africa; Switzerland; Thailand; United Kingdom; United States of America; Vanuatu and Vietnam.

Pegasus Scholarship Trust

The Pegasus Scholarship Trust was established in England to make it possible for gifted young lawyers to learn about the practical working of the common law system in countries other than their own, and to form enduring links with lawyers in those countries. Since 1987 the Trust has been sponsoring Pegasus Scholars from overseas to study and work in England, and Pegasus Scholars from England to live and work abroad. The Trust is supported by the Inns of Court, several major law firms, the Cambridge Commonwealth Trust, and government and commercial agencies.

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During the reporting year the Chief Justice arranged for the Court to host a Pegasus Scholar, Mr Andrew Blake, a London barrister. He was with the Court from 12 August to 6 September 2002 as a research assistant to the Melbourne judges. The Court has been supporting the work of the Trust in this way since 1995 and will host another Pegasus Scholar in 2003-2004.

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CHAPTER 4

MANAGEMENT OF THE COURT

Chapter 4 –Management of the Court

4.1 INTRODUCTION

Since 1990 the Court has been self-administering, with a separate reporting arrangement to the Parliament and budget appropriation. Under the Federal Court of Australia Act, the Chief Justice of the Court, currently the Hon M E J Black AC, is responsible for managing the administrative affairs of the Court. Under the Act, he is assisted in this responsibility by the Registrar who is also appointed under the Act. The Act also provides that the Chief Justice may delegate any of his administrative powers to judges and that the Registrar may exercise powers on behalf of the Chief Justice in relation to the Court's administrative affairs.

The management of the Court is supported by the collegiate involvement of all the judges of the Court, through formal meetings of all judges and through the judges’ committee structure (discussed below). As outlined in Chapter 1 of this report, the Court’s administration is supported by a national registry structure, with a national office, the Principal Registry, responsible for managing national issues and supporting the corporate services functions of the Court, and a district registry structure in each state and territory which supports the work of the Court at a local level. The registries of the Court also provide registry support to the Federal Magistrates Court and in some states, to the High Court and the Administrative Appeals Tribunal. A diagram of the management structure of the Court is set out in Appendix 2 on page 113.

Judges' Committees

There are a number of standing committees of judges of the Court which assist with the administration of the Court and play an integral role in managing issues across the breadth of the Court’s administration, as well as its rules and practice. The Committees provide advice to the Chief Justice and to all judges at the regular judges’ meetings. The current standing committees are:

Admiralty Library Assisted Dispute Resolution Management of Appeals Audit Native Title Coordination Bankruptcy Policy & Planning Corporations Practice Equality and the Law Rules Finance Security Information Technology Transcript Judicial Education

In addition, a number of other committees and working parties have been established from time to time to deal with particular issues. For example, this year an Organisation Review Steering Committee was convened to manage the internal review of the Court’s administration. Each committee is supported by staff of the Court.

65 Federal Court of Australia – Annual Report 2002-2003

Judges' Meetings

There were two meetings of all judges of the Court during the year. The matters dealt with included reforms to the Court's practice and procedure and amendments to the Rules of Court.

4.2 CORPORATE SERVICES

The Corporate Services Branch in the Principal Registry is responsible for supporting the national corporate functions of the Court and managing national human resources, financial management, technology, library and information, property and contract management issues. The following outlines the major corporate services issues for the Court during the reporting year.

Financial Management

The judges’ Finance Committee oversees the financial management of the Court. The Committee is supported by the Corporate Services Branch.

During the reporting period the Court initiated several major activities to maintain and secure the Court's financial position, including the internal organisational review.

The Court reviewed and implemented a new financial management reporting structure to further enhance monthly and annual financial reporting. The new budget model, emphasising zero based budgeting, provided an opportunity for the Court to reassess resource allocations and workload levels across the Court.

To further support and enhance the Court’s financial management, a new enhancement of the Court’s Financial Management Information System was implemented. The enhancement extended the reporting functionality of the system providing management with improved reporting tools, as well as streamlined data entry processing.

Financial Accounts

The net operating result from ordinary activities for 2002-03 was an operating surplus of $5.587m compared to budgeted loss of $0.609m and a surplus of $2.315m in 2001- 02. The positive variance results from deferred expenditure in relation to the Court’s new case management system.

After allowing for a capital use charge of $2.820m equity was $27.610m compared to $24.881m in 2001-02.

During 2002-03 revenues from ordinary activities totalled $79.570m. Total revenue comprised:

• an appropriation from Government of $66.062m; • resources received free of charge of $5.739m for accommodation occupied by the Court in Sydney and other minor services received free of charge from other Government agencies;

66 Chapter 4 –Management of the Court

• $5.611m of liabilities assumed by other government agencies representing the notional value of employer superannuation payments for the Court’s judges; • $0.809m from interest; • $0.154m from the sale of assets; and • $1.195m from the sale of goods and services.

Total Court expenses of $73.983m in 2002-03 comprised $40.672m in judges’ and employees’ salaries and related expenses, $19.664m in property related expenses, $10.965m in other administrative expenses, $2.184m in depreciation expenses, $0.039m in asset write-downs and $0.459m from the sale of assets.

The total price of the Court’s outputs for 2002-03 is $79.570m as detailed below.

Table 4.1 Outcome and Output Statement

Budget Actual Expenses 2002-03 2002-03 $’000 $’000 Output 1.1 Federal Court Revenue from 65 935 66 062 Business Government (Appropriations) 12 645 13 508 Total revenue from other Sources

Total price of 78 580 79 570 departmental outputs

TOTAL FOR 78 580 79 570 OUTCOME

Risk Management and Internal Audit

The Court’s Audit Committee is responsible for the internal audit program, fraud control plan and implementation of the risk management plan. It comprises the Registrar, the NSW District Registrar and a judge.

The Court’s internal audit program incorporates activities on areas of significant risk or where a high level of quality assurance is necessary. The 2002-03 audit program focussed on the following activities:

• the management of subpoenaed documents, exhibits and court reporting to assess compliance with Court policies; • compliance with Chief Executive instructions in relation to the management of debtors, corporate credit cards and cab-charge ; • a review of the Court's Fraud Control Plan; and • an audit of the Court’s owned assets, leased assets and software.

67 Federal Court of Australia – Annual Report 2002-2003

During the reporting period the Audit Committee continued to monitor the Court’s performance against its Fraud Control Plan and the implementation of risk management principles and policies. The achievements during 2002-03 were:

• the development of a comprehensive risk management plan; • strong performance against Comcover’s Benchmarking Risk Management Program and a discount on the Comcover insurance premium; and • provision of risk management training.

The Court also has commenced a review of its existing national risk register, which provides relevant information for managers to control risks and identify areas for improvements.

Staff of the Australian National Audit Office inspected the Court's 2002-03 financial statements and provided an unqualified audit certificate.

Consultancy Services

The Registrar of the Court may engage consultants under section 18R of the Federal Court of Australia Act. Table 4.2 below lists consultants engaged by the Court during 2002 –2003.

Table 4.2 Consultants Engaged during 2002 – 2003

CONSULTANT VALUE PURPOSE Enterprising IT $4,050 Evaluation of processes for Case Management System Acumen Alliance $18,380 Strategic IT consultancy services Spherion $43,148 Implementation of Human Resource Management System Flinders University $3,000 Advice on docket management system Walter Turnbull Chartered $5,511 Advice on Resource Accountants Allocation Model People Strategy $15,618 Participation in organisation review Dr Geoff Bagshaw $72,126 Anthropology services Synercon $51,810 Advice on records management system

Advertising and Marketing Services

A total of $18,495.97 was paid for recruitment advertising services throughout the reporting period.

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The Court does not use market research organisations, polling organisations, direct mail organisations or media advertising agencies.

Technology Services

The Information Technology Committee oversees the provision of technology services across the Court. Key achievements and activities in the Court’s use of technology in 2002-03 are set out below.

Case Management System

In December 2002 the IT Committee recommended that the Court adopt the Casetrack information system being used by the Family Court of Australia and by the Federal Magistrates Court in family law matters. Casetrack will replace the Court’s existing case management information system, FEDCAMS, and will facilitate:

• the registration and management of cases; • managing party details; • filing of documents; • the collection and processing of fees; • the recording of outcomes and orders; • listing of cases; and • the production of reports and documents/orders.

The introduction of Casetrack into the Federal Court will provide a common court management system across the Federal, Family and Federal Magistrates Courts. This will enable all federal courts to take advantage of future facilities such as integrating the functionality of e-filing and the eCourt forum.

A Casetrack Project Team was established in early January 2003 to undertake the configuration and implementation of Casetrack within the Court. Initial pilot testing of the system within three of the smaller registries of the Court is scheduled for late 2003, with national implementation planned for the end of the 2003–04. Initial feedback from judges and staff about Casetrack’s improved functionality has been positive.

Computer & Operating System Win 2000 Project

During the year, the Court completed a combined project to replace all the Court’s desktop and notebook computers and implement a new Windows 2000 operating environment and software suite. It was a complex and resource intensive project, which was implemented quickly to minimise impact on judges and staff. The project concluded at the end of August 2002, finishing two weeks ahead of schedule and on budget. To facilitate a smooth transition for judges and staff, a customised training program was run in parallel with the upgrade project. The implementation resulted in an improved level of service and access to technology.

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Court Wide Access/Citrix “Metaframe XP” Project

During the year the Court upgraded the technology which enables judges and staff who are travelling interstate to have full access to their personal electronic files, email and diary, case information and legal research material. This was achieved utilising a web browser portal that maintains full security of the Court’s IT system. The new environment has been a great improvement to the accessibility of the Court’s electronic environment for judges and staff, which is an important issue for the Court, particularly in supporting judges during Full Court sittings, which involve considerable travel by judges and their staff.

Secure Hosting

In order to meet the Government’s direction to ensure whole-of-government e- commerce is delivered and maintained within a secure computer environment, the Court continued to implement appropriate strategies to migrate the services provided through eCourt to a secure hosting environment. In December 2002 the Electronic Filing Service was migrated to the secure hosted environment, followed by the Court’s Internet Home Page and Webmail services.

IT Security Initiatives

Enhanced security of the Court’s IT environment was a priority during the year, particularly in relation to Internet usage. An IT Security Policy was developed and publicised widely to judges and staff. Internet Content Management software “Surf Control” was also trialled during the year, with the objective of implementing it across the Court early in 2003-04.

GroupWise Upgrade project

The Court commenced an upgrade of GroupWise from version 5.5 to 6.5, which will be completed in 2003-04 to provide the Court with a greatly enhanced Webmail service, which enables judges and staff to securely access their internal Court emails from any computer with Internet access. GroupWise 6.5 was successfully trialled within the Principal Registry and will be implemented nationally during early 2003- 04. Staff training will also be undertaken.

Human Resources

Workplace Bargaining

During the reporting period, workplace relations in the Court focussed on finalising negotiations for the Court’s 2002 – 2005 Certified Agreement and, following certification of the Agreement on 21 August 2002, implementing a range of initiatives contained in it. As with the previous Agreement, there was extensive consultation with staff and the CPSU and close to 95% of staff voted in support of the new agreement.

70 Chapter 4 –Management of the Court

The agreement consolidates many of the initiatives in the Court’s previous Certified Agreement, as well as outlining the processes for the organisation review which was undertaken during the year. The agreement also contains a commitment to the development of a National Training Strategy and refined a range of employment conditions to better suit both the Court and staff. Building on the Court’s commitment to work and family initiatives, the new agreement provides an additional two weeks of ‘post’ maternity leave as well as five days’ parental leave for staff with no entitlement to paid maternity leave, such as fathers. Arrangements for Regional Consultative Committees, which operate in each of the Court’s registries, were also formalised and a new performance management process was implemented. A number of classification reviews were also finalised and preparation commenced on draft Work Level Standards.

The Court’s National Consultative Committee (NCC) continued to operate effectively through the year and oversaw the development of a range of policies on issues such as travel and miscellaneous leave. Minutes from the NCC and Regional Consultative Committees are placed on the Court’s intranet for easy access by staff.

The NCC also had an active input into the Court’s strategies for promoting an appropriate balance of work and personal commitments among staff. The Court’s work in this area was recognised in the course of the year when the Court received a high commendation in the Work and Family Awards run by the Australian Chamber of Commerce and Industry.

Staffing Overview

At 30 June 2003 the Court employed 368 employees under the Public Service Act. This figure comprised 218 on-going full-time employees, 11 on-going part-time employees and 139 non-ongoing employees. The high number of non-ongoing employees is due to the nature of employment of judges’ associates (who are generally employed for 12 months) and casual court officers. The Court had an average staffing level of 322.6 during the reporting period.

Table 4.3 on page 73 contains an overview of the Court’s staffing by location at 30 June 2003. Table 4.4 on page 74 contains details of the number of staff in each Registry and the Principal Registry. Table 4.5 on page 75 contains details of the Court’s Senior Executive Service (SES) staff.

Australian Workplace Agreements (AWAs) were developed for a number of new SES and non-SES staff, mostly at the EL 2 level. The Court currently has 21 staff on AWAs, 10 of whom are SES officers. All remaining staff are covered by the Court’s 2002 – 2005 Certified Agreement. A number of the AWAs provide for an executive vehicle, otherwise provisions generally mirror Certified Agreement provisions with the exception of base salary and, in a small number of cases, leave entitlements.

Performance Management

The Court’s performance management program continued to operate effectively through the reporting period. A new process was developed through 2002 and implemented in March 2003 which strengthens the links between business planning

71 Federal Court of Australia – Annual Report 2002-2003 and the training and development of employees. It also seeks to involve teams in identifying objectives and standards for assessing team based activities. Training for staff on performance feedback continued during the year.

Performance Pay

Performance pay within the Court is used on a case-by-case basis, typically for staff engaged on specific tasks with clear personal accountabilities. Performance pay arrangements, where used, are provided for under AWAs. At the time of writing, there are no performance pay arrangements in place for Court staff.

Training and Development

Training and development was a major focus in negotiations for the Court’s current Certified Agreement, which included a commitment to the development of a national training and development strategy in consultation with the NCC. The strategy will draw together all the registry training plans and monitor national and local training expenditure. The strategy links to the Court’s objectives and provides a framework against which the effectiveness of training can be gauged.

National training during the year focussed primarily on two initiatives, consistent with the Court’s business objectives. These were:

• training for managers and staff in giving and receiving feedback (which will continue into 2003-04), and; • development and consolidation of a number of networks of Court staff involved in similar work eg. a Client Services network which involves all of the Court’s client services staff and meets via quarterly phone hook-ups and an annual conference, the first of which was held in December 2002 and a network of library staff.

Sessions were also presented nationally on the Court’s Workplace Harassment policy, the new Certified Agreement and the Court’s new Performance Management policy.

A major focus of national training for staff in 2003-04 will be on the Casetrack system and in line with the Court’s Self-Represented Litigants Management Plan (outlined in Chapter 3). A consultant has been selected to present this training.

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Table 4.3 Staffing Overview by Location (actual occupancy as at 30 June 2003 – includes full and part time staff)

Level PR NSW VIC QLD SA WA TAS ACT NT Total

SES1 3 2 2 1 1 1 10

FCL2 3 5 3 2 1 1 15

FCL1 3 1 1 1 1 7

FCM2 9 1 3 1 1 1 16

FCM1 10 1 6 2 1 1 3 24

FCS6 8 3 4 1 1 2 1 1 21

FCS5 15 51 39 14 8 11 1 2 141

FCS4 2 2 2 2 1 9

FCS3 4 14 15 8 5 7 5 1 2 61

FCS2 1 25 14 10 2 7 2 2 63

FCS1 1 1

Total 52 105 91 41 20 35 8 9 7 368

Note: The Registrar, who is a holder of public office, is not included in this table.

Key: PR - Principal Registry SES - Senior Executive Service officer FCS - Federal Court Staff FCM - Federal Court Manager FCL - Federal Court Legal

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Table 4.4 Judges and Court staff (as at 30 June 2003)

Judges Staff Principal Registry 1 Registrar 2 Deputy Registrars 50 Staff

New South Wales 18 Judges 1 District Registrar 104 Staff

Victoria Chief Justice 1 District Registrar 11 Judges 90 Staff

Queensland 4 Judges 1 District Registrar 40 Staff

South Australia 3 Judges 1 District Registrar 19 Staff

Western Australia 4 Judges 1 District Registrar 34 Staff

Northern Territory No Resident Judge 7 Staff

Australian Capital 1 Judge 1 District Registrar * Territory 9 Staff

Tasmania No Resident Judge 1 District Registrar 7 Staff

Notes: Only judges with primary commissions in the Court have been included. * Mr John Mathieson is District Registrar of NSW and the ACT. Only judges whose primary work is as a judge of the Federal Court are included in this table.

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Table 4.5 Senior Executive Service (as at 30 June 2003)

Senior Executive Service Principal Registry Grading Occupied

Senior Deputy Registrar Alan Dawson Senior Executive Band 1

Executive Director, Gordon Foster Senior Executive Band 1 Corporate Services Branch

Deputy Registrar Philip Kellow Senior Executive Band 1

New South Wales District Registry

District Registrar John Mathieson Senior Executive Band 1

Deputy District Registrar Jennifer Hedge Senior Executive Band 1 Part-Time (Specialist)

Victoria District Registry

District Registrar Jamie Wood Senior Executive Band 1

Deputy District Registrar John Efthim Senior Executive Band 1

Queensland District Registry

District Registrar Graham Ramsey Senior Executive Band 1

South Australia District Registry

District Registrar Patricia Christie Senior Executive Band 1

Western Australia District Registry

District Registrar Martin Jan PSM Senior Executive Band 1

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Table 4.6 Salary ranges by classification level under Certified Agreement or AWA (as at 30 June 2003)

Court Designation APS Classification Salary

Clerical Administrative Positions Federal Court Staff Level 1 APS Level 1 28 829 31 860 Federal Court Staff Level 2 APS Level 2 32 626 36 178 Federal Court Staff Level 3 APS Level 3 37 160 40 107 Federal Court Staff Level 4 APS Level 4 41 418 44 969 Federal Court Staff Level 5 APS Level 5 46 195 48 985 Federal Court Staff Level 6 APS Level 6 49 893 57 313 Federal Court Manager Level 1 Executive Level 1 63 860 68 967 Federal Court Manager Level 2 Executive Level 2 73 620 77 674 90 574 Legal Positions Federal Court Legal 1 From APS Level 3 38 292 To Executive Level 1 77 674 Federal Court Legal 2 Executive Level 2 84 808 101 920 Senior Executive Positions Senior Executive Service Band 1 SES Band 1 112 405 132 966

More generally, training was carefully targeted towards the development of essential core skills and the Court spent $247,000 on external training during the period.

The Court’s Studybank policy also continued to operate and provided staff with leave and financial assistance to pursue approved tertiary studies. During the reporting period $16,165 was paid to staff undertaking studies under the policy.

Occupational Health & Safety

During the reporting period the Court successfully re-negotiated its Occupational Health and Safety Agreement. This new Agreement combines a number of related policies and aims to simplify the Court’s management of occupational health and safety issues.

Workplace safety audit checklists were developed and each registry conducts regular workplace inspections aimed at identifying risks and hazards in the workplace.

During the reporting period the Court’s Principal and NSW registries were the subject of an investigation by Comcare Australia. The report from Comcare indicates that the

76 Chapter 4 –Management of the Court

Court’s occupational health and safety systems and management performs well above the Commonwealth average.

No provisional improvement notices were issued under section 29 of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (OH&S Act). No directions or notices under section 46 of the OH&S Act were served on the Court prohibiting the use of any workplace, plant or substance. There were no notifications under section 68 of the OH&S Act of a dangerous occurrence or accident as defined by the Act.

A total of 53 working weeks were lost due to work related injuries compared to 107 weeks for the previous reporting period. The Court’s Comcare premium increased slightly from 1.18 per cent of the salary budget to 1.19 per cent.

The Court continues to provide staff with free, confidential counselling through the Employee Assistance Program provided by WorkCare Australia.

Workplace Diversity

The Court maintained an active commitment to the principles of workplace diversity during this period. Some of the initiatives commenced during the reporting period are set out below.

• The continuation of the Indigenous Research Assistant Program. This program was trialled in 2001 and attracted a significant response when applications were invited for subsequent programs. Participants and judges and staff associated with the program report that considerable benefit is derived from the program.

• The National Consultative Committee has been consulted on proposed changes to the Court’s Workplace Diversity Plan, which are expected to be finalised by December 2003.

• The Court’s Workplace Diversity Coordinator continued to play a key role within the Public Service and Merit Protection Commission Workplace Diversity and Indigenous Employment network.

• The Court’s Certified Agreement includes a range of additional initiatives aimed at assisting staff to balance their work with family/personal commitments. These include provision for an additional two weeks of paid ‘Post Maternity Leave’, the option of taking maternity leave at half pay and a 15 per cent loading for part-time staff who agree at short notice to vary their hours on one- off occasions to meet additional costs such as fares or child care.

• The Court’s Workplace Harassment policy was completed and released to staff. Sessions on the policy were conducted in all registries.

77 Federal Court of Australia – Annual Report 2002-2003

Library and Information Services

The Court continued to maintain a national library network, which provides a comprehensive library service to judges and staff of the Court. In Brisbane, Melbourne, Perth and Sydney, library access was also available to the legal profession and self represented litigants. The provision of library and information services is overseen by the Judges’ Library Committee. Key achievements in 2002–2003 are set out below.

Hobart Library

The Court has taken over management responsibility for the former Commonwealth Law Courts Library in Hobart. A library service sufficient to meet the requirements of Federal Court judges is now operating, staffed on a part-time basis. Other Commonwealth agencies in Hobart have been given access to the collection on a cost recovery basis. Retrospective conversion of the Hobart library holdings onto the Court’s library system was completed during the year.

Sydney Library

The renegotiation of the Commonwealth/State agreement relating to the operation of the joint Law Courts Library in Sydney mentioned in last year’s annual report is still proceeding. At the time of reporting, a Memorandum of Understanding, which is contingent on the transfer of adequate funding from the Attorney-General’s Department to the Court, is close to finalisation but is yet to be signed.

Archive of Judgments

In addition to providing all judgments to the Australasian Legal Information Institute (“AustLII”) site, the Court has established its own archive of judgments accessible from the Court’s home page. This provides backup access to the judgments if the AustLII site is unavailable. The rapid availability of judgments electronically assists their speedy dissemination to the legal and wider community.

Internet home page

The Court’s web site at www.fedcourt.gov.au has become a primary source of information about the Court for the legal community and the general public. The web site is maintained by the Corporate Services Branch. In the reporting year the following enhancements were made to the site:

• it was moved to a secure site to meet Commonwealth standards; • the community relations information was redesigned to emphasise information to assist litigants; • enhancements were made to the e-filing pages including a tutorial; and • court lists were moved to the home page with enhanced functionality.

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Online databases

The major upgrade of the Court’s Citrix environment (mentioned under Technology Services above) has streamlined access to and improved the speed of CD-ROMs and online subscriber databases through a web page on the intranet. It will also enable remote users to access CD-ROMs through the Court’s network. New services subscribed to included Current Legal Information incorporating the Legal Journals Index, Oxford English Dictionary and Corporate Law Bulletin.

Intranet

Usage of the Court’s intranet has continued to grow and it is now recognised as the main vehicle for distributing information to staff and judges. The intranet provides a single access point to legal research material and administrative information across the Court, with many documents being full text searchable. Some minor redesign work to group subject areas and improve functionality of the layout was implemented during the year. Training on the use of the intranet has continued for both judges and court staff.

Library services to the South Pacific and Thailand

As outlined in Chapter 3, the Court provides assistance to law libraries in the South Pacific and was successful in an application for significant funding from AusAID over five years to continue an existing program. The Court also supports a specialist intellectual property court in Thailand, sending regular shipments of reports and textbooks. A special donation of superseded textbooks was sent to Fiji during the year. Staff of the Library and Information Services section of the Branch supports this work.

Records management

The pilot project to provide policies and procedures for the proper management of records has completed the first two steps of the Designing and Implementing Record Keeping Systems (DIRKS) methodology recommended by National Archives.

Archives

Work has continued on restoring and framing historical photographs relevant to the Court’s history. The accessions and photographs database has been converted into Access software for easier upgrading in the future. A collection of reproductions of early depictions of the Court’s environs in Macquarie and King Streets in Sydney has been framed for display in the public areas outside courtrooms in the Sydney building.

Commonwealth Disability Strategy

In accordance with the Commonwealth Disability Strategy, the Court undertook the following activities during the reporting period.

• Human resource policies were developed and monitored for compliance with the requirements of the Disability Discrimination Act.

79 Federal Court of Australia – Annual Report 2002-2003

• Recruitment information was provided on the Court’s home page, as well as via email and hard copy. • The Court provided a TTY service in all of its registries for people with a hearing impairment. During the reporting period the Court received no requests for information in alternative formats. • Building works on existing and proposed buildings continued to take into account the needs of people with disabilities. Examples included: - ensuring inquiry counters are appropriately designed for use by people in wheelchairs; - ensuring appropriate signage; and - progressive improvements to building access and facilities within buildings, including those outlined below.

Improved access to Court buildings

The Court is conscious of the need for its facilities to be accessible to all members of the community and is committed to ensuring that people with disabilities do not face any access problems in their contact with the Court.

During the year a number or projects to improve access for people with disabilities were completed. In Commonwealth Law Court buildings these projects are undertaken in cooperation with other Commonwealth jurisdictions which also occupy the buildings. Projects included:

• upgrading the Tank Street entrance of the Commonwealth Law Courts building in Brisbane;

• replacement of two heavy revolving doors at the main entry at the Commonwealth Law Courts Building in Perth with power operated sliding doors, which have greatly improved access to the building; and

• further progress with a program to improve hearing augmentation throughout the Court, with the development of a regular testing and maintenance program to ensure existing equipment is fully operational and reliable.

Other developments included the following.

• Completion of an independent national audit of Court facilities by a external consultant who was asked to comment on compliance against current standards and provide the Court with advice on the implications of the Commonwealth Disability Strategy for Court buildings and the adequacy of building emergency procedures for people with disabilities. Recommendations have been considered and prioritised in consultation with other jurisdictions in the Commonwealth Law Courts buildings and a national works program was developed for the high priority recommendations. These will be implemented during 2003-04.

• In Sydney, Law Courts Limited, the building owner, has considered a program of mostly minor upgrade works for 2003-04, which was also recommended by the consultant. These consist of changes to handrails, step markings, door markings, signage, drainage grates, furniture and hearing augmentation.

80 Chapter 4 –Management of the Court

Property Management

Major issues for property management in the Court during the year included the following.

• Commencement of construction of the new Commonwealth Law Courts building in Adelaide in November 2002. The Court continues to work with the design team with the focus shifting now to courtroom technology and fitout.

• Continuing concerns have been raised regarding the deteriorating condition of the Law Courts Building in Sydney which is 27 years old. Under the current management arrangement involving the Commonwealth and NSW Governments, the building manager, Law Courts Ltd, has been unable to fund major periodic maintenance, ongoing preventative maintenance and mechanical and services upgrades. Work is also required in relation to asbestos containment and removal. The Commonwealth Minister for Finance and Administration has agreed to consider the ongoing financial arrangements and to identify immediate issues that require resolution.

• There is continued concern that the Court’s existing commercial accommodation in Darwin is proving to be unsatisfactory given the workload in the Northern Territory. Alternative short-term accommodation is under consideration by the Court. There is an increasing need for the construction of a Commonwealth Law Courts building in Darwin.

During the year the Court also completed a number of projects to upgrade its premises and facilities, including:

• construction of new visiting chambers in Sydney, overcoming a severe shortage of these facilities; • upgrading conference rooms in Brisbane; • the construction of new computer rooms and upgrading computer cabling infrastructure in Canberra, Hobart & Perth; and • provision of accommodation for research assistants and a training room in Melbourne.

Environmental Management

The Court provides the following information as required by section 516A of the Environmental Protection and Biodiversity Conservation Act 1999.

The nature of the Court’s core business, outcomes and activities is such that it does not impact or affect the principles of ecologically sustainable development. However, the Court is seeking to minimise the impact of its activities on the environment through the following measures:

• testing of cooling towers and water features in Court buildings in accordance with Commonwealth, State and local statutory requirements, which includes testing for Legionella bacteria;

81 Federal Court of Australia – Annual Report 2002-2003

• energy consumption data is provided to the Australian Greenhouse Office as part of the Court’s obligations to Government as part of the Kyoto Protocol; and • development of environmental management systems in all court buildings, with a pilot project being undertaken in the Brisbane Building. An environmental audit was completed in the Brisbane building during the year and the same consultant has been engaged to undertake additional audits in Sydney and Melbourne and to then develop a policy to apply to all buildings.

82 Appendix 1 – Financial Statements 2002 – 2003

APPENDIX 1

FINANCIAL STATEMENTS 2002 – 2003

83 Federal Court of Australia – Annual Report 2002-2003

84 Appendix 1 – Financial Statements 2002 – 2003

85 Federal Court of Australia – Annual Report 2002-2003

86 Appendix 1 – Financial Statements 2002 – 2003

FEDERAL COURT OF AUSTRALIA STATEMENT OF FINANCIAL PERFORMANCE for the year ended 30 June 2003 2003 2002 Notes $'000 $'000

Revenues from ordinary activities Revenues from Government 3A 77,412 75,705 Sales of goods and services 3B 1,195 1,393 Interest 3C 809 836 Revenue from sale of assets 3D 154 68 Revenues from ordinary activities 79,570 78,002

Expenses from ordinary activities Judges and employees 4A 40,672 38,452 Suppliers 4B 30,629 32,689 Depreciation and amortisation 4C 2,184 2,168 Write-down of assets 4D 39 2,310 Value of assets sold 3D 459 68 Expenses from ordinary activities 73,983 75,687

Net surplus 5,587 2,315

Net credit to asset revaluation reserve 10 - 926

Total revenues, expenses and valuation adjustments attributable to the Commonwealth Government and recognised directly in 5,587 3,241 equity Total changes in equity other than those resulting from transactions with owners as owners 5,587 3,241

The above statement should be read in conjunction with the accompanying notes.

87 Federal Court of Australia – Annual Report 2002-2003

FEDERAL COURT OF AUSTRALIA STATEMENT OF FINANCIAL POSITION as at 30 June 2003 2003 2002 Notes $'000 $'000 ASSETS Financial assets Cash 5A 1,927 4,726 Receivables 5B 11,547 405 Other investments 5C - 3,500 Total financial assets 13,474 8,631

Non-financial assets Land and buildings 6A 3,981 4,567 Infrastructure, plant and equipment 6B 9,099 9,781 Intangibles 6C 701 955 Other 6G 15,476 14,815 Total non-financial assets 29,257 30,118

TOTAL ASSETS 42,731 38,749

LIABILITIES Interest Bearing Liabilities Other 7A 546 750 Total interest bearing liabilities 546 750

Provisions Capital use charge 8A - 52 Judges and employees 8B 14,226 12,636 Total provisions 14,226 12,688

Payables Suppliers 9A 349 430 Total payables 349 430

TOTAL LIABILITIES 15,121 13,868

NET ASSETS 27,610 24,881 EQUITY Contributed Equity 10A 4,585 4,585 Reserves 10A 1,245 1,245 Retained surpluses 10A 21,780 19,051

TOTAL EQUITY 27,610 24,881

Current assets 23,445 19,260 Non-current assets 19,286 19,489 Current liabilities 4,777 4,173 Non-current liabilities 10,344 9,695

The above statement should be read in conjunction with the accompanying notes.

88 Appendix 1 – Financial Statements 2002 – 2003

FEDERAL COURT OF AUSTRALIA STATEMENT OF CASH FLOWS for the year ended 30 June 2003 2003 2002 Notes $'000 $'000 OPERATING ACTIVITIES Cash received

Goods and services 1,231 1,912 Appropriations 65,440 64,931 Interest 450 490 GST received from ATO 2,414 2,971 Total cash received 69,535 70,304 Cash used Judges and employees 33,495 32,341 Suppliers 25,453 27,918 GST paid to ATO 2,370 2,726 Total cash used 61,318 62,985

Net cash from operating activities 11 8,217 7,319

INVESTING ACTIVITIES Cash received Proceeds from sales of property, plant and equipment 170 72 Proceeds from maturity of term deposits 65,000 126,300 Total cash received 65,170 126,372 Cash used Purchase of property, plant and equipment 1,101 2,641 Purchase of intangibles 98 84 Purchase of term deposits 61,500 128,800 Cash Transferred to the OPA 10,600 - Total cash used 73,299 131,525

Net cash (used by) investing activities (8,129) (5,153)

FINANCING ACTIVITIES Cash used Capital use charge paid 2,511 3,004 Returns to owner 376 - Total cash used 2,887 3,004

Net cash (used by) financing activities (2,887) (3,004)

Net (decrease) in cash held (2,799) (838) Cash at the beginning of the reporting period 4,726 5,564 Cash at the end of the reporting period 5A 1,927 4,726

The above statement should be read in conjunction with the accompanying notes.

89 Federal Court of Australia – Annual Report 2002-2003

FEDERAL COURT OF AUSTRALIA SCHEDULE OF COMMITMENTS as at 30 June 2003 2003 2002 Notes $'000 $'000 BY TYPE

Capital Commitments Infrastructure, Plant and Equipment 17 33 Total capital commitments 17 33

Other Commitments Operating Leases1 122,893 121,051 Goods and services contracts 1,301 1,536 Total other commitments 124,194 122,587

Commitments receivable (11,292) (11,481)

Net Commitments 112,919 111,139

BY MATURITY

Capital commitments One year or less 17 33 From one to five years - - Over five years - -

Operating Lease Commitments One year or less 12,089 10,830 From one to five years 47,591 42,564 Over five years 63,212 56,652 Net Commitments by maturity 122,909 110,079

All commitments are Goods and Services Tax inclusive where relevant.

1 Operating leases are effectively non-cancellable and comprise: Nature of lease General description of leasing arrangement Leases for office accommodation These commitments are mainly for rental of special purpose court buildings which are occupied by the Court’s registries. These court buildings are owned by the Commonwealth of Australia, except the New South Wales court building which is owned by Law Courts Limited, a joint venture between the NSW State and Commonwealth Governments. There are no formal lease agreements executed which detail future payments. However, the rental amounts have been reliably measured and disclosed as they are the amounts expected to be payable under the arrangement with the Commonwealth and State Governments. Leases of photocopiers The Court leases a number of photocopiers under various contracts. Agreements for the provision of motor The Court leases motor vehicles from Lease Plan under the terms of a contract that vehicles to judges and senior officers is operative until late 2003. Leases of computer equipment The Court leases computer equipment as necessary in 3 year supply contract.

SCHEDULE OF CONTINGENCIES as at 30 June 2003

There were no contingent losses or gains as at 30 June 2003.

The above schedules should be read in conjunction with the accompanying notes.

90 Appendix 1 – Financial Statements 2002 – 2003

FEDERAL COURT OF AUSTRALIA SCHEDULE OF ADMINISTERED ITEMS

2003 2002 Notes $'000 $'000

Revenues Administered on Behalf of Government for the year ended 30 June 2003 Non taxation revenue Fees 17 4,414 4,450 Fines 17 38 61 Other 17 187 156 Total Revenues Administered on Behalf of Government 4,639 4,667

Expenses Administered on Behalf of Government for the year ended 30 June 2003 Refund of fees and fines 18 68 82 Fees and Fines – provision for doubtful debts 18 44 - Total expenses Administered on Behalf of Government 112 82

Assets Administered on Behalf of Government as at 30 June 2003 Financial Assets Cash 19 29 28 Receivables 19 81 287

Total Assets Administered on Behalf of Government 110 315

Net Assets Administered on Behalf of Government 20 110 315

Current Liabilities - - Non Current Liabilities - - Current Assets 110 315 Non Current Assets - -

Administered Cash Flows for the year ended 30 June 2003 Operating Activities Cash Received Fees and Fines 4,615 4,480 Cash from Official Public Account 65 75 Other 187 156 Total cash received 4,867 4,711

Cash used Refund of court fees and fines 68 82 Cash to Official Public Account 4,798 4,635 Total cash used 4,866 4,717 Net cash from/(used in) operating activities 1 (6)

Net increase/(decrease) in cash held 1 (6) Cash at the beginning of the reporting period 28 34 Cash at the end of the reporting period 29 28

Statement of Activities Administered on Behalf of Government The major administered financial activities of the Court relate to collection of Court fees and fines on behalf of the Government. Details of planned activities for the year can be found in the Portfolio Budget and Portfolio Additional Estimates for 2002/03 which have been tabled in Parliament. This schedule should be read in conjunction with the accompanying notes.

91 Federal Court of Australia – Annual Report 2002-2003

FEDERAL COURT OF AUSTRALIA NOTES TO AND FORMING PART OF THE FINANCIAL STATEMENTS for the year ended 30 June 2003

Note Description 1 Summary of Significant Accounting Policies 2 Events Occurring after Balance Date 3 Operating Revenues 4 Operating Expenses 5 Financial Assets 6 Non-Financial Assets 7 Interest Bearing Liabilities 8 Provisions 9 Payables 10 Equity 11 Cash Flow Reconciliation 12 Executive Remuneration 13 Remuneration of Auditors 14 Average Staffing Levels 15 Act of Grace Payments, Waivers and Defective Administration Scheme 16 Financial Instruments 17 Revenues Administered on Behalf of Government 18 Expenses Administered on Behalf of Government 19 Assets Administered on Behalf of Government 20 Administered Reconciliation Table 21 Administered Financial Instruments 22 Appropriations 23 Assets Held in Trust 24 Special Public Money 25 Reporting of Outcomes

92 Appendix 1 – Financial Statements 2002 – 2003

FEDERAL COURT OF AUSTRALIA NOTES TO AND FORMING PART OF THE FINANCIAL STATEMENTS for the year ended 30 June 2003

Note 1: Summary of Significant Accounting Policies

1.1 Objectives of the Court

The Objectives of the Court are to:

• decide disputes according to law promptly, courteously and effectively; and in so doing to interpret the statutory law and develop the general law of the Commonwealth, so as to fulfil the role of a court exercising the judicial power of the Commonwealth under the Constitution; • provide an effective registry service to the community; and • manage the resources allotted by Parliament efficiently.

The Court is structured to meet the following outcome:

Outcome: To apply and uphold the rule of law to deliver remedies and enforce rights and in so doing, contribute to the social and economic development and well-being of all Australians.

1.2 Basis of Accounting

The financial statements are required by s. 49 of the Financial Management and Accountability Act 1997 and are a general purpose financial report.

The statements have been prepared in accordance with: Finance Minister’s Orders (being the Financial Management and Accountability (Financial Statements for reporting periods on or after 30 June 2003) Orders; Australian Accounting Standards and Accounting Interpretations issued by the Australian Accounting Standards Board; and the Consensus Views of the Urgent Issues Group.

The Statements of Financial Performance and Financial Position have been prepared on an accrual basis and are in accordance with historical cost convention, except for certain assets which, as noted, are at valuation. Except where stated, no allowance is made for the effect of changing prices on the results or the financial position.

Assets and liabilities are recognised in the Statement of Financial Position when and only when it is probable that future economic benefits will flow and the amounts of assets or liabilities can be reliably measured. Assets and liabilities arising under agreements equally proportionately unperformed are however not recognised unless required by an Accounting Standard. Liabilities and assets which are unrecognised are reported in the Schedule of Commitments and the Schedule of Contingencies.

Revenues and expenses are recognised in the Statement of Financial Performance when and only when the flow or consumption or loss of economic benefits has occurred and can be reliably measured.

The continued existence of the Court in its present form, and with its present programs, is dependent on Government policy and on continuing appropriations by Parliament for the Court’s administration and programs.

Administered revenues, expenses, assets and liabilities and cash flows reported in notes 17, 18 and 19 are reported on the same basis and using the same policies as for Court items except where otherwise stated in note 1.20.

1.3 Changes in Accounting Policy

The accounting policies used in the preparation of these financial statements are consistent with those used in 2001-02 except in respect of: • the accounting for output appropriations (refer to note 1.4) • measurement of certain employee benefits at nominal amounts (refer to Note 4A) • the initial revaluation of property plant and equipment on a fair value basis (refer to Note 1.13); and • the imposition of an impairment test for non-current assets carried at cost (refer to Note 1.14). 93 Federal Court of Australia – Annual Report 2002-2003

1.4 Revenues

The revenues described in this note and note 1.20 are revenues relating to the core operating activities of the Court, whether in its own right or on behalf of the Commonwealth. Details of revenue amounts are given in Notes 3 and 17.

Revenues from Government Departmental appropriations for the year are recognised as revenue, except for certain amounts which relate to activities that are reciprocal in nature, in which case revenue is recognised only when it has been earned.

Resources Received Free of Charge

Services received free of charge are recognised as revenue when and only when a fair value can be reliably determined and the services would have been purchased if they had not been donated. Use of these resources is recognised as an expense.

Contributions of assets at no cost of acquisition or for nominal consideration are recognised at their fair value when the asset qualifies for recognition, unless received from another government agency as a consequence of a restructuring of administrative arrangements.

Other Revenue

Recognition of other revenue items is as follows: Revenue from the sale of goods is recognised upon the delivery of goods to customers. Court revenue from the rendering of a service is recognised by reference to the stage of completion of contracts or other agreements to provide services. The stage of completion is determined according to the proportion that costs incurred to date bear to the estimated total costs of the transaction. Interest revenue is recognised on a proportional basis taking into account the interest rates applicable to the financial assets. Revenue from disposal of non-current assets is recognised when control of the asset has passed to the buyer.

1.5 Transactions with the Government as Owner

Capital Use Charge

A Capital Use Charge of 11% (2001/02: 11%) is imposed by the Government on the Court’s net assets at year end. The net assets figure is adjusted to take account of asset gifts and revaluation increments during the financial year. The Charge is accounted for as a dividend to Government.

In accordance with the recommendations of a review of Budget Estimates and Framework, the Government has decided that the Charge will not operate after 30 June 2003.

1.6 Judges and Employee Benefits

Liabilities for services rendered by Judges and employees are recognised at the reporting date to the extent that they have not been settled.

Liabilities for wages and salaries (including non-monetary benefits) and annual leave are measured at their nominal amounts. Other employee benefits expected to be settled within 12 months of the reporting date are also measured at their nominal amounts.

The nominal amount is calculated with regard to the rates expected to be paid on settlement of the liability. This is a change in the accounting policy from last year required by an initial application of a new Accounting Standard AASB 1028 from 1 July 2002. The Court’s certified agreement provides for an increase of 4% to pay rates on 1 July 2003 and a further 4% on 1 July 2004.

All other employee benefit liabilities are measured as the present value of the estimated future cashflows to be made in respect of services provided by employees up to the reporting date.

94 Appendix 1 – Financial Statements 2002 – 2003

Leave

The liability for employee benefits includes provision for annual leave and long service leave. No provision has been made for sick leave as all sick leave is non-vesting and the average sick leave taken in future years by employees of the Court is estimated to be less than the annual entitlement for sick leave.

The leave liabilities are calculated on the basis of employees’ remuneration including the Court’s employer superannuation contribution rates to the extent that the leave is likely to be taken during service rather than paid out on termination.

The long service leave provision is based on the Federal Court's estimated liability at balance date for long service leave entitlements of its employees. Court staff employed under the Public Service Act accrue 3 months long service leave after 10 years service, and progressively thereafter on a proportional basis. The Federal Court accrues this provision for each employee based on the probability that long service leave will be taken in the future or paid out once the employee meets the qualifying 10 years. Judges accrue 6 months long leave after 5 years of service. In recognition of the nature of Judges' tenure, a provision is accrued from the first year of service.

The non-current portion of the liability for long service leave is recognised and measured at the present value of the estimated future cash flows to be made in respect of all employees at 30 June 2003. In determining the present value of the liability, the Court has taken into account attrition rates and pay increases through promotion and inflation.

Separation and Redundancy

Provision is made for separation and redundancy benefit payments. The Court has agreed to voluntary redundancy arrangements and is presently obliged to make such payments.

Superannuation

Staff of the Court are members of the Commonwealth Superannuation Scheme and the Public Sector Superannuation Scheme. The liability for their superannuation benefits is recognised in the financial statements of the Commonwealth and is settled by the Commonwealth in due course.

The Court makes employer contributions to the Commonwealth at rates determined by an actuary to be sufficient to meet the cost to the Commonwealth of the superannuation entitlements of the Court’s employees. The liability for superannuation recognised as at 30 June represents outstanding contributions for the final fortnight for the year.

Judges’ Pension

Under the Judges' Pension Act 1968 Federal Court judges are entitled to a non-contributory pension of 60% of current judicial salary after attaining the age of 60 years and having served 10 years or more as a judge or upon retirement on the ground of invalidity. Pro rata pension is payable after 6 years service as a judge upon retirement. As the liability for these pension payments is assumed by the Commonwealth, the Court has not recognised a liability for unfunded superannuation liability.

The Court has, however, recognised both an expense and a corresponding revenue item, “Liabilities assumed by other agencies", in respect of the notional amount of the employer contributions to Judges’ non-contributory pension for the reporting period amounting to $5,286,551 (2001-02: $4,889,690). The amount has been calculated by multiplying a contribution rate of 51.7% per annum by the judges’ total annual salary in respect of Federal Court judges. The contribution rate has been provided by the Australian Government Actuary.

The Court has also recognised an additional expense of $324,084 (2001-02: $189,166) in relation to the notional amount of the employer contribution to Judges’ pension in respect of the relevant portion of Judges’ accrued leave, which is expected to be taken in the future. An equal amount has been included in “Liabilities assumed by other agencies".

1.7 Leases

A distinction is made between finance leases which effectively transfer from the lessor to the lessee substantially all the risks and benefits incidental to ownership of leased non-current assets and operating leases under which the lessor effectively retains substantially all such risks and benefits. As at balance date the Court did not have any assets acquired under finance lease. Therefore, all leased assets have been classified as operating leases. Operating lease payments are expensed on a basis which is representative of the pattern of benefits derived from the leased assets.

95 Federal Court of Australia – Annual Report 2002-2003

Lease incentives taking the form of "free" leasehold improvements and rent-free holidays are recognised as liabilities. These liabilities are reduced by allocating lease payments between rental expense and reduction of the liability.

1.8 Cash

Cash means notes and coins held and any deposits held at call, with a bank or financial institution.

1.9 Financial Instruments

Accounting policies for financial instruments are stated in Notes 16 and 21.

1.10 Receivables

All outstanding accounts are reviewed periodically and debts are written off as bad when so identified. The write-off is to expense or, to the extent that a provision for a doubtful debt already existed, as a reversal of the provision. A provision is raised for any doubtful debts based on a review of all outstanding accounts at the year end.

1.11 Prepayments

The prepayment for accommodation expenses shown in note 6G comprises two components. The first component represents a prepayment of rent for the period 1 July to 31 December 2003 as required under the Court’s existing lease arrangements. The second component represents prepayment of the Court’s contribution towards costs associated with the maintenance of law court buildings (excluding the New South Wales Law Courts Building) occupied by the Court. These funds are managed by the Court’s property portfolio manager, who acquits all expenditure on a monthly basis.

The prepayment of library expenses represents subscriptions paid in advance.

1.12 Acquisition of assets

Assets are recorded at cost on acquisition except as stated below. The cost of acquisition includes the fair value of assets transferred in exchange and liabilities undertaken.

Assets acquired at no cost, or for nominal consideration, are initially recognised as assets and revenues at their fair value at the date of acquisition, unless acquired as a consequence of restructuring administrative arrangements. In the latter case, assets are initially recognised at the amounts at which they were recognised in the transfer agency’s accounts immediately prior to the restructuring.

1.13 Property, plant and equipment

Assets recognition threshold

Purchases of all property, plant and equipment are recognised initially at cost in the Statement of Financial Position, except for purchases of: assets other than information technology equipment costing less than $2,000; information technology equipment costing less than $1,500 which are expensed in the year of acquisition (other than where they form part of a group of similar items, which are significant in total).

Library materials are partially capitalised based on the nature of the materials and their expected useful lives.

Revaluations

Buildings, infrastructure, plant and equipment have been revalued progressively in accordance with the ‘deprival’ method of valuation in successive 3-year cycles, so that no asset has a value greater than 3 years old. Revaluations undertaken up to 30 June 2002 were done on a deprival basis; future revaluations will be done at fair value. This change in accounting policy is required by Australian Accounting Standard AASB 1041 Revaluation of Non-Current Assets.

The Court revalued all of its property, plant and equipment during the 2001-02 financial year. These valuations were carried out by independent valuers. Assets acquired after the commencement of the revaluation are reported at cost. All assets will be revalued in 2004-05.

96 Appendix 1 – Financial Statements 2002 – 2003

Recoverable Amount Test

From 1 July 2002, the Schedule 1 no longer requires the application of the recoverable amount test in Australian Accounting Standard AAS 10 Recoverable Amount of Non-current Assets to the assets of agencies where the primary purpose of the asset is not the generation of net cash inflows.

No property plant and equipment assets have been written down to recoverable amount per AAS 10. Accordingly, the change in policy has had no financial effect.

Depreciation and Amortisation

Depreciable property, plant and equipment assets are written-off to their estimated residual values over their estimated useful lives to the Court using, in all cases the straight line method of depreciation. Leasehold improvements are amortised on a straight-line basis over the lesser of the estimated useful life of the improvements or the unexpired period of the lease.

Depreciation/amortisation rates (useful lives) and methods are reviewed at each balance date and necessary adjustments are recognised in the current, or current and future reporting periods, as appropriate. Residual values are re-estimated for a change in prices only when assets are revalued.

Depreciation and amortisation rates applying to each class of depreciable asset are based on the following useful lives:

2003 2002 Leasehold improvements 10 years or 10 years or Lease term Lease term Plant and equipment – excluding library materials 4 to 10 years 4 to 10 years Plant and equipment – library materials 5 to 40 years 5 to 40 years

The aggregate amount of depreciation and amortisation allocated for each class of asset during the reporting period is disclosed in Note 4C.

1.14 Intangibles

The Court’s intangibles comprise externally purchased software which is carried at cost.

Intangible assets are amortised on a straight-line basis over their anticipated useful lives. Useful lives are:

2003 2002 Software 5 years 5years

All software assets were assessed for impairment as at 30 June 2003. None were found to be impaired.

1.15 Commitments

Commitments at 30 June 2003 reflect agreements between the Court and third parties in which neither party has fulfilled any contractual obligations and unperformed portion of contractual obligations in agreements in which both parties have performed some of their obligations while other obligations have yet to be honoured.

1.16 Resources provided free of charge

Federal Magistrates Court

The Federal Court of Australia provides resources free of charge to the Federal Magistrates Court in accordance with sections 90, 92 and 99 of the Federal Magistrates Act 1999. Resources provided free of charge include: • Federal Court staff performing work on behalf of the Federal Magistrates Court, and • accommodation, including access to the Court's courtrooms.

It is estimated that the cost of the resources provided free of charge by the Federal Court to the Federal Magistrates Court during 2002-03 was $4,487,950 (2001-02: $3,173,491).

97 Federal Court of Australia – Annual Report 2002-2003

Industrial Relations Court of Australia

Legislation passed by Federal Parliament in late November 1996, specifically Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 (WROLA), provided for the jurisdiction previously exercised by the Industrial Relations Court of Australia to be transferred to the Federal Court on 26 May 1997.

Despite the transfer of the industrial relations jurisdiction to the Federal Court, the Industrial Relations Court of Australia continues to have jurisdiction over certain matters where a substantive hearing in the proceedings had commenced, or where hearings had been completed before the transfer date. Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 provides that the Chief Justice of the Federal Court may arrange with the Chief Justice of the Industrial Relations Court for staff, facilities and any other necessary support to be made available to the Industrial Relations Court for the purposes of the Industrial Relations Court. It is estimated that the cost of the resources provided free of charge by the Federal Court to the Industrial Relations Court during 2002-03 was $1,269 (2001-02: $15,824).

1.17 Insurance

The Court has insured for risks through the Government's insurable risk managed fund, called 'Comcover'. Workers compensation for Court employees is insured through Comcare Australia. The Chief Justice and Judges of the Court are provided for on a case-by-case basis through the Judges Pension Act 1968 and Act of Grace provisions.

1.18 Comparative Figures

Comparative figures have been adjusted to conform to changes in presentation in these financial statements where required.

1.19 Rounding

Amounts have been rounded to the nearest $1,000 except in relation to the following: transactions of the Assets Held in Trust and Special Public Money; act of grace payments and waivers; remuneration of executives; remuneration of auditors; and appropriation note disclosures.

1.20 Reporting of administered activities

Administered revenues, expenses, assets, liabilities and cash flows are disclosed in the Schedule of Administered Items and related Notes.

Accounting policies for administered items are as stated in note 1.2.

These financial statements do not report the receipt of administered appropriations from the Official Public Account (OPA) as administered revenues, nor are transfers of administered receipts to the OPA reported as administered expenses. These transactions or balances are internal to the Administered entity. Transfers of cash are reported as administered (operating) cash flows.

Accounting policies which are relevant to administered activities of the Court are disclosed below.

Revenues

All administered revenues are revenues relating to the core operating activities performed by the Court on behalf of the Commonwealth. These comprise fees and fines.

Revenue from fees is recognised at the time the services are performed. The services are performed at the same time as, or within two days of, the fees becoming due and payable.

Revenue from fines is recognised in the period in which the invoice for the fine is raised.

98 Appendix 1 – Financial Statements 2002 – 2003 Note 2: Events Occurring After Balance Date

The Court is not aware of any significant events that have occurred since balance date which warrant disclosure in these statements.

Note 3: Operating Revenues

2003 2002 $’000 $’000

Note 3A: Revenues from Government

Appropriation for outputs 66,062 64,931 Reimbursements received from other Government agencies - 111 Resources received free of charge 5,739 5,584 Liabilities assumed by other agencies 5,611 5,079 Total 77,412 75,705

Resources received free of charge includes an amount of $5,547,582 (2001-02 $5,407,000) in respect of rent and outgoings associated with the accommodation occupied by the Court in the Law Courts Building located in Sydney, New South Wales. This building is owned by Law Courts Limited, a joint venture between the NSW State and Commonwealth Governments.

Note 3B: Sales of Goods and Services

Goods - 9 Services 1,155 1,384 Resources received free of charge 40 - Total sales of goods and services 1,195 1,393

Provision of goods and services to: Related entities 844 1,073 External entities 351 320

Total sales of goods 1,195 1,393

Note 3C: Interest Revenue

Interest on deposits 809 836

Note 3D: Net Losses From Sale of Assets

Infrastructure, plant and equipment: Proceeds from disposal 154 68 Net book value of assets disposed 459 68 Net loss from disposal of infrastructure, plant and equipment (305) -

Note 4: Operating Expenses

Note 4A: Judges and Employee Expenses Remuneration 32,147 30,830 Superannuation 8,092 7,387 Separation and redundancies 243 - Total employee benefits expense 40,482 38,217 Workers compensation premiums 190 235 Total employee expenses 40,672 38,452

99 Federal Court of Australia – Annual Report 2002-2003 Note 4B: Supplier Expenses 2003 2002 $’000 $’000

Goods from related entities 14,726 17,747 Operating lease rentals* 15,903 14,942 Total supplier expenses 30,629 32,689 *These comprise minimum lease payments only.

Note 4C: Depreciation and Amortisation

Depreciation Leasehold improvements 791 598 Plant and equipment 1,082 1,321 Total Depreciation 1,873 1,919

Amortisation Intangibles 311 249 Total depreciation and amortisation 2,184 2,168

Note 4D: Write down of Assets

Non-financial assets: Plant and equipment - write-off on disposal 39 203 Intangibles – write-down (refer to note 1.14) - 2,107 Total write-down of assets 39 2,310

Note 5: Financial Assets

Note 5A: Cash Cash on hand Departmental 1,927 4,726 Total cash 1,927 4,726

Note 5B: Receivables Goods and services 34 58 Less: Provision for doubtful debts - - GST Receivable from the Australian Taxation Office 291 310 Interest receivable - 37 Appropriations receivable 11,222 - Total receivables (net) 11,547 405 All receivables are current assets

Receivables (gross) are aged as follows: Not overdue 11,525 374 Overdue by: - Less than 30 days 1 4 - 30 to 60 days - 2 - 60 to 90 days - 10 - More than 90 days 21 15 22 31 Total receivables (gross) 11,547 405

Note 5C: Investments Cash on deposit - 3,500

100 Appendix 1 – Financial Statements 2002 – 2003

Note 6: Non-Financial Assets

Note 6A: Land and Buildings 2003 2002 $’000 $’000

Leasehold Improvements – at cost 1,836 1,632 Accumulated amortisation (207) (28) 1,629 1,604

Leasehold Improvements – at 2001-02 valuation (deprival) 6,114 6,114 Accumulated amortisation (3,762) (3,151) 2,352 2,963

Total Land and Buildings (non-current) 3,981 4,567

Note 6B: Infrastructure, Plant and Equipment

Plant and Equipment – at cost 1,168 287 Accumulated depreciation (72) (5) 1,096 282

Plant and Equipment – at 2001-02 valuation (deprival) 11,222 12,962 Accumulated depreciation (3,219) (3,463) 8,003 9,499

Total Infrastructure, Plant and Equipment (non-current) 9,099 9,781

Note 6C: Intangibles

Computer Software Purchased – at cost 1,586 1,529 Accumulated amortisation (885) (574) 701 955

Total intangibles 701 955

All revaluations were completed before 30 June 2002 in accordance with the policy stated in Note 1.13 and were completed by an independent valuer (Australian Valuation Office).

101 Federal Court of Australia – Annual Report 2002-2003 Note 6D: Analysis of Property, Plant, Equipment and Intangibles

TABLE A: Reconciliation of the opening and closing balances of property, plant, equipment and intangibles

Item Leasehold Other Total property, Computer Total improvements- infrastructure, plant and Software – Total land and plant and equipment buildings equipment Intangibles $’000 $’000 $’000 $’000 $’000

As at 1 July 2002: Gross book value 7,746 13,248 20,994 1,529 22,523 Accumulated depreciation/ (3,179) (3,467) (6,646) (574) (7,220) amortisation Net book value 4,567 9,781 14,348 955 15,303

Additions By purchase 204 888 1,092 69 1,161

Depreciation/amortisation expense (790) (1,082) (1,872) (311) (2,183)

Disposals Other disposals - (488) (488) (11) (498)

As at 30 June 2003 Gross book value 7,950 12,390 20,340 1,586 21,926 Accumulated depreciation/ (3,969) (3,291) (7,260) (885) (8,145) amortisation Net book value 3,981 9,099 13,080 701 13,781

Note 6E: Analysis of Property, Plant, Equipment and Intangibles

TABLE B: Assets at valuation

Item Leasehold improvements – Total Plant and Total Total land and buildings equipment

$’000 $’000 $’000

As at 30 June 2003 Gross value 6,114 11,222 17,336 Accumulated Depreciation/amortisation (3,762) (3,219) (6,981) Net book value 2,352 8,003 10,355 As at 30 June 2002 Gross value 6,114 12,962 19,076 Accumulated depreciation /amortisation (3,151) (3,463) (6,614) Net book value 2,963 9,499 12,462

Note 6F: Other Non-Financial Assets 2003 2002 $’000 $’000

Prepayments: 15,476 14,815

102 Appendix 1 – Financial Statements 2002 – 2003

Note 7: Interest Bearing Liabilities

2003 2002 $’000 $’000 Note 7A: Other Interest Bearing Liabilities

Lease Incentive 546 750

Other Interest Bearing Liabilities are represented by: Current 204 204 Non-current 342 546 Total other interest bearing liabilities 546 750

Note 8: Provisions

Note 8A: Capital Use Charge Provision Capital use charge - 52

Balance owing 1 July 52 353 Capital Use Charge provided for during the period 2,820 2,703 Adjustment former years (361) Capital Use Charge paid (2,511) (3,004) Balance owing 30 June - 52

The capital use charge provision is a current liability

Note 8B: Judges and Employee Provisions

Salaries and wages 687 481 Leave 12,553 11,340 Superannuation 661 618 Separations and redundancies 133 - Fringe Benefits Tax 192 197 Aggregate Judges and employees entitlement liability 14,226 12,636 Aggregate Judges and employees benefit liability and related on-costs 14,226 12,636 Judges and employees provisions are represented by: Current 4,224 3,487 Non-current 10,002 9,149

Note 9: Payables

Note 9A: Supplier Payables Trade Creditors 256 296 Operating lease rentals 3 8 Sundry Creditors 90 126 Total supplier payables 349 430 Suppliers payables are represented by: Current 259 430 Non-current 90 - Total supplier payables 349 430

103 Federal Court of Australia – Annual Report 2002-2003 Note 10: Equity

Note 10A: Analysis of Equity

Item Accumulated Asset Revaluation Contributed TOTAL EQUITY Results Reserves Equity

2003 2002 2003 2002 2003 2002 2003 2002 $'000 $'000 $'000 $'000 $'000 $'000 $'000 $'000 Opening Balance as at 1 19,051 19,439 1,245 319 4,585 4,585 24,881 24,343 July Net surplus 5,587 2,315 - - - - 5,587 2,315 Net revaluation - - - 926 - - - 926 increment Decrease in retained (23) - - - - - (23) - surpluses on application of transitional provisions in accounting standard AASB 1028 Employee Benefits

Transactions with owner: Distributions to owner: (376) (376) Returns on Capital Capital Use Charge (2,820) (2,703) (2,820) (2,703) Returns of Capital Capital Use Charge 361 361 Closing balance as at 21,780 19,051 1,245 1,245 4,585 4,585 27,610 24,881 30 June Total equity attributable 21,780 19,051 1,245 1,245 4,585 4,585 27,610 24,881 to the Commonwealth

Note 11: Cash Flow Reconciliation

2003 2002 $’000 $’000 Reconciliation of cash per Statement of Financial Position to Statement of Cash Flows • Cash at year end per Statement of Cash Flows 1,927 4,726 • Statement of Financial Position items comprising above cash: 'Financial 1,927 4,726 Assets - Cash'

Reconciliation of net surplus to net cash from operating activities. Net surplus 5,587 2,315 Depreciation/amortisation 2,184 2,168 Net write down of non-financial assets 39 2,310 Loss on disposal of assets 305 - Decrease (increase) in net receivables (542) 379 (Increase)/decrease in prepayments (661) (634) Other changes in the opening balances of assets - 317 Increase (decrease) in suppliers payables (81) (171) Increase in judge and employee provisions 1,590 839 Decrease in other liabilities (204) (204) Net cash from/(used by) operating activities 8,217 7,319

104 Appendix 1 – Financial Statements 2002 – 2003

Note 12: Executive Remuneration

The number of executive officers of the Court who received, or were due to receive, total remuneration of $100,000 or more is as follows:

Total Remuneration 2003 2002

$100,000 to $109,999 - 1 $120,000 to $129,999 - 1 $130,001 to $139,999 - 2 $150,000 to $159,999 2 2 $160,000 to $169,999 1 - $170,000 to $179,999 4 - $180,000 to $189,999 1 2 $190,000 to $199,999 - 1 $210,000 to $229,999 - 1 $250,000 to $259,999 1 - 9 10

The aggregate amount of total remuneration of the executives shown above: $1,617,771 $1,607,077

Note 13: Remuneration of Auditors 2003 2002 $ $ Financial statement audit services are provided free of charge to the Court by the Australian National Audit Office. The fair value of audit services provided was: 67,000 67,000

The audit fees for the Industrial Relations Court of Australia were borne by the Federal Court and have been included in the amounts disclosed in this note. No other services were provided by the Auditor-General during the financial year.

Note 14: Average Staffing Levels

2003 2002

The average staffing levels for the Federal Court during the year were: 322.6 342.2

105 Federal Court of Australia – Annual Report 2002-2003 Note 15: Act of Grace Payments, Waivers and Defective Administration Scheme

No payments were waived during the financial year 2002-03 under sub-section 34(1) of the Financial Management and Accountability Act 1997. The following details are furnished in relation to amounts waived during the financial year under legislation administered by the Court. Registrars are given the authority to waive or postpone fees where payment would cause hardship or where the potential payer is in receipt of legal aid from an approved organisation. 2003 2002 Number Amount Number Amount $ $ Sub-regulation 2(4) Federal Court Regulations - Sub-regulation 2(4)(a) (Legal Aid) 146 54,699 200 69,961 - Sub-regulation 2(4)(b) (Holder of Pension or Health Card or Prison Inmate) 788 558,740 1,112 686,781 - Sub-regulation 2(4)(c) (Waive on basis of level of income) 985 665,832 748 447,468

Sub-regulation 2A(2) Federal Court Regulations - Sub-regulation 2A(2)(e) (Legal Aid) 211 76,860 272 95,870 - Sub-regulation 2A(2)(f) (Holder of Pension or Health Card or Prison Inmate) 292 101,756 255 78,482 - Sub-regulation 2A(2)(g) (Waive on basis of level of income) 215 112,562 160 63,959

Sub-regulation 2AA(2) Federal Court Regulations - Sub-regulation 2AA(2)(f) (Legal Aid) 32 35,406 36 37,872 - Sub-regulation 2AA(2)(g) (Holder of Pension or Health Card or Prison Inmate) 385 438,344 732 771,905 - Sub-regulation 2AA(2)(h) (Waive on basis of level of income) 392 448,149 372 397,259 Total 3,446 2,492,348 3,887 2,649,557

No Act of Grace Payments were made during the reporting period. No payments were made under the defective administration scheme.

Note 16: Financial Instruments

Note 16A: Terms, Conditions and Accounting policies

Financial Instrument Note Numbers Accounting Policies and Methods Nature of underlying instrument (including recognition criteria (including significant terms & conditions and measurement basis) affecting the amount, timing and certainty of cash flows)

FINANCIAL ASSETS Financial assets are recognised when control over future economic benefits is established and the amount of the benefit can be reliably measured. Cash 5A Cash is recognised at its nominal Monies in the Court’s bank accounts are swept into the amounts. Interest on cash at bank is Official Public Account nightly and interest is earned credited to revenue as it accrues. on the daily balance at rates based on money market call rates. The interest rate was 2% for the year (2002: 2%). In addition, rates averaging 3.52% (for the year) (2002:3.56%) have been earned on prepaid accommodation expenses. Receivables for goods 5B These receivables are recognised at Receivables are with entities that are both internal and and services the nominal amounts due less any external to the Commonwealth. Credit terms are net 30 provision for bad and doubtful days debts. Collectability of debts is reviewed at balance date. Provisions are made when collection of the debt is judged to be less rather than more likely. Interest receivable 5B Interest is accrued as it is earned

106 Appendix 1 – Financial Statements 2002 – 2003

Appropriations 5B These receivables are recognized at Amounts appropriated by the Parliament in the current receivable their nominal amounts or previous years which are available to be drawndown by the Court. Also includes amounts to be appropriated by the Parliament in a future year for services provided in previous years under a purchasing, workload or similar agreement. Investments 5C Investments are recognised at their The Court invests funds with the Reserve Bank of nominal amount. Interest is accrued Australia at call. Interest rates have averaged 4.74% for as it is earned. the year (2002: 4.44%) FINANCIAL Financial liabilities are recognised LIABILITIES when a present obligation to another party is entered into and the amount of the liability can be reliably measured.

Lease incentives 7A The lease incentive is recognised as a The Court has received fitout incentives on entering a liability on receipt of the incentive. property operating lease in September 1995. The amount of the liability is reduced on a straight-line over the life of the lease by allocating lease payments between rental expense and reduction of the liability. Trade creditors 9A Creditors and accruals are Creditors are entities that are both internal and external recognised at their nominal to the Commonwealth. Settlement is usually made net amounts, being the amounts at 30 days. which the liabilities will be settled. Liabilities are recognised to the extent that the goods or services have been received (and irrespective of having been invoiced).

Note 16B: Interest Rates Risk

Financial Note Floating Interest Fixed Interest Non-Interest Total Weighted Instrument Numbers Rate Rate Bearing Average Maturing in Effective Interest Rate 1 year or less 2003 2002 2003 2002 2003 2002 2003 2002 2003 2002 $’000 $’000 $’000 $’000 $’000 $’000 $’000 $’000 % % Financial Assets Cash at bank 5A 1,919 4,717 - - 8 9 1,927 4,726 2.00 2.00 Receivables for 5B - - - - 11,547 405 11,547 405 n/a n/a goods and services (gross) Term deposits 5C - - - 3,500 - - - 3,500 4.44 Total 1,919 4,717 - 3,500 11,554 414 13,474 8,631 Total Assets 42,731 38,749

Financial Liabilities Lease Incentives 7A - - - - 546 750 546 750 n/a Suppliers 9A - - - - 349 430 349 430 n/a Payable Total 895 1,180 895 1,180 Total liabilities 15,121 13,868

Note 16C: Net Fair Values of Financial Assets and Liabilities

Financial assets

The net fair values of cash, investments and non-interest-bearing monetary financial assets approximate their carrying amounts.

107 Federal Court of Australia – Annual Report 2002-2003

Financial liabilities

The net fair values for lease incentives and trade creditors are approximated by their carrying amounts.

Note 16D: Credit Risk Exposures

The Court’s maximum exposures to credit risk at reporting date in relation to each class of recognised financial assets is the carrying amount of those assets as indicated in the Statement of Financial Position.

The Court has no significant exposures to any concentrations of credit risk. All figures for credit risk referred to do not take into account the value of any collateral or other security.

Note 17: Revenues Administered on Behalf of Government

2003 2002 $'000 $'000 Other Revenue Fees 4,414 4,450 Fines 38 61 Other 187 156 Total Revenues Administered on Behalf of Government 4,639 4,667

Note 18: Expenses Administered on Behalf of Government

Other Refund of fees and fines 68 82 Fees and fines - provision for doubtful debts 44 - Total Expenses Administered on Behalf of Government 112 82

Note 19: Assets Administered on Behalf of Government

Financial Assets Cash 29 28 Receivables Fees 128 387 Less: provision for doubtful debts (47) (100) Total Receivables (net) 81 287

Total 110 315 Receivables (gross) are aged as follows: Overdue by: - Less than 30 days 53 116 - 30 to 60 days 21 37 - 60 to 90 days 11 71 - More than 90 days 43 163 Total Receivables (gross) 128 387 Total Assets Administered on Behalf of Government 110 315

Note 20: Administered Reconciliation Table

Administered assets less administered liabilities as at 1 July 315 290 Plus Administered revenues 4,639 4,667 Less Administered expenses (112) (82) Administered transfers to/from Government Appropriation transfers from OPA 65 75 Transfers to OPA (4,798) (4,635) Administered assets less administered liabilities as at 30 June 109 315

108 Appendix 1 – Financial Statements 2002 – 2003

Note 21: Administered Financial Instruments a) Terms, Conditions and Accounting Policies

Financial Instrument Note Accounting Policies and Methods Nature of underlying instrument Numbers (including recognition criteria and (including significant terms & measurement basis) conditions affecting the amount, timing and certainty of cash flows) FINANCIAL ASSETS . Cash 19 Deposits are recognised at their nominal The balance of the administered cash amounts. account is non interest bearing. Fees Receivable 19 Fees accrue and are recognised at the time Receivables are with entities that are both services are performed. internal and external to the Commonwealth. The payments of fees are set out in the Federal Court rules.

b) Administered Interest Rate Risk

Financial Instrument Notes Non-Interest Bearing Total Weighted Average Effective Interest Rates 2003 2002 2003 2002 2003 2002 $’000 $’000 $’000 $’000 % % Financial Assets Cash 19 29 28 29 28 n/a n/a Fees receivable 19 81 287 81 287 n/a n/a Total financial assets (recognised) 110 315 110 315 Total assets 110 315

c) Net Fair Values of Administered Financial Assets and Liabilities

Financial assets

The net fair values of cash and non-interest-bearing monetary financial assets approximate their carrying amounts.

Note 22: Appropriations

Note 22A: Cash Basis Acquittal of Appropriations from Acts 1 and 3

Particulars Departmental Total Outputs

Year ended 30 June 2003 $ $ Balance carried forward from previous year 4,463,920 4,463,920 Appropriation for reporting period (Act 1) 65,440,000 65,440,000 Appropriation for reporting period (Act 3) 495,000 495,000 Adjustments by Finance Minister Amounts from Advance to the Finance Minister Refunds credited (FMA s 30) GST credits (FMA s 30A) 2,414,009 2,414,009 Annotations to ‘net appropriations’ (FMA s31) 1,741,831 1,741,831 Transfer to/from other agencies (FMA s 32) 127,000 127,000 Administered appropriation lapsed 109 Federal Court of Australia – Annual Report 2002-2003

Available for payments 74,681,760 74,681,760 Payments made (65,404,000) (65,404,000) Appropriations credited to Special Accounts - - Balance carried to next year 9,277,760 9,277,760 Represented by: Cash 1,979,763 1,979,763 Add: Appropriations receivable 7,297,997 7,297,997 Total 9,277,760 9,277,760

Particulars Departmental Total Outputs

Year ended 30 June 2002 $ $ Balance carried forward from previous year 2,798,753 2,798,753 Total annual appropriation 70,379,585 70,379,585 Available for payments 73,178,338 73,178,338 Payments made 68,714,418 68,714,418 Appropriations credited to Special Accounts Balance carried to next year 4,463,920 4,463,920 Represented by: Cash 4,463,920 4,463,920 Add: Appropriations receivable - - Total 4,463,920 4,463,920

Note 22B: Special Accounts

2003 2002 $ $ Other Trust Moneys Account

Legal Authority: Financial Management and Accountability Act, 1997, s 20 Purpose: For expenditure of moneys temporarily held on trust or otherwise for the benefit of a person other than the Commonwealth Balance carried from previous year 118,388 109,801 Receipts during the period 174,926 315,223 Available for payments 293,314 425,024 Payments made during the period (192,532) (306,636) Balance carried forward to next period 100,782 118,388

Services for other Governments & Non-agency bodies

Legal authority: Financial Management and Accountability Act, 1997, s 20 Purpose: For expenditure in connection with services performed on behalf of other Governments and bodies that are not FMA agencies

Balance carried from previous year 38,189 51,449 Receipts during the period 561,093 277,532 Available for payments 599,282 328,981 Payments made during the period (588,884) (290,792) Balance carried forward to next period 10,398 38,189

110 Appendix 1 – Financial Statements 2002 – 2003 Note 23: Assets Held in Trust

Comcare Trust Account

Purpose: Moneys held in trust and advanced to the Court by Comcare for the purpose of distributing compensation payments made in accordance with the Safety Rehabilitation and Compensation Act 1998. . 2003 2002 $ $ Balance carried forward from previous period 35,736 22,381 Receipts during the period 47,635 129,757 Available for payments 83,371 152,138 Payments made during the period (80,854) (116,402) Balance carried forward to next period 2,517 35,736

Note 24: Special Public Money

Note 24A: Federal Court of Australia Litigants' Fund

Legal Authority - Order 63 rule 2 Federal Court Rules Purpose: To hold private moneys for litigants pending acceptance of moneys paid into Court by litigants; security for costs or pursuant to an order of a Federal Court Judge.

2003 2002 $ $ Balance carried forward from previous period 1,008,184 1,406,126 Receipts during the period 3,389,426 2,580,319 Available for payments 4,397,610 3,986,445 Payments made during the period (3,155,575) (2,978,261) Balance carried forward to next period 1,242,035 1,008,184

Note 24B: Other Investments

Legal authority - Order 63 rule 4 of the Federal Court Rules Purpose: to invest private moneys paid by litigants pursuant to an order of a Federal Court Judge, pending an order for payment out by a Federal Court Judge.

2003 2002 $ $ Balance carried forward from previous period 13,675,805 1,582,645 Receipts during the period 10,950,640 15,547,749 Available for payments 24,626,445 17,130,394 Payments made during period (6,363,221) (3,454,589) Balance carried forward to next period 18,263,224 13,675,805

The balance of investments at year end consisted of cash management and fixed term bank accounts to which various interest rates apply.

111 Federal Court of Australia – Annual Report 2002-2003 Note 25: Reporting of Outcomes

Note 25A: Net Cost of Outcome Delivery

The Court’s output structure was revised in 2002/03 one Output measure: Federal Court Business.

Outcome 1 2003 2002 $’000 $’000 Administered expenses 112 82 Departmental expenses 73,983 75,619 Total expenses 74,095 75,701 Costs recovered from provision of goods and services to the non-government sector Administered - - Departmental - - Total costs recovered 0 0 Other external revenues Administered 4,639 4,667 Total Administered 4,639 4,667 Departmental Interest on cash deposits 450 490 Revenue from sale of assets 154 68 Other 359 346 Goods and services revenue from 1,195 1,325 Related Entities Total Departmental 2,158 2,229 Total other external revenues 6,797 6,986 Net cost/(contribution) of outcome 67,298 68,805

Note 25B: Major Classes of Departmental Revenues and Expenses by Outcomes

Outcome 1 Outcome 1 Total 2003 2002 $’000 $’000 Departmental Expenses Judges and employees 40,672 38,452 Suppliers 30,629 32,689 Depreciation and amortisation 2,184 2,168 Other expenses 498 2,310 Total departmental expenses 73,983 75,687 Funded by: Revenues from government 77,412 75,705 Sale of goods and services 1,195 1,393 Other non taxation revenues 963 836 Total departmental revenues 79,570 77,934

112 Appendix 2 – Management Structure

APPENDIX 2

MANAGEMENT STRUCTURE

CHIEF JUSTICE The Hon M E J Black AC

& Judges

JUDGES’ STANDING COMMITTEES

REGISTRAR Warwick Soden

PRINCIPAL REGISTRY DISTRICT REGISTRIES

Executive Australian Capital Territory

New South Wales Corporate Services Branch

Northern Territory Finance Queensland

Human Resources South Australia

Tasmania Library & Information Services Victoria

Technology Services Western Australia

113 Federal Court of Australia - Annual Report 2002 - 2003

APPENDIX 3

REGISTRARS OF THE COURT (as at 30 June 2003)

Registry Name Appointments under other Acts

Principal Registry

Registrar Warwick Soden

Senior Deputy Registrar Alan Dawson A Registrar, Federal Magistrates Court

Deputy Registrar Philip Kellow Marshal in Admiralty (under Admiralty Act) Sheriff of the Federal A Registrar, Federal Magistrates Court Court of Australia

New South Wales

District Registrar John Mathieson Registrar, Defence Force Discipline Appeal Tribunal A Registrar, Federal Magistrates Court

Deputy District Jennifer Hedge Registrar, Federal Police Disciplinary Tribunal Registrars A Registrar, Federal Magistrates Court

Geoffrey Segal Registrar, Australian Competition Tribunal A Registrar, Federal Magistrates Court

Anthony Tesoriero Secretary, Copyright Tribunal A Registrar, Federal Magistrates Court

Stephanie Kavallaris A Registrar, Federal Magistrates Court

Anna Quilter A Registrar, Federal Magistrates Court

Kim Lackenby Deputy Registrar, Australian Competition Tribunal Deputy Registrar, Federal Police Disciplinary Tribunal A Registrar, Federal Magistrates Court

Lance Grant A Registrar, Federal Magistrates Court Deputy Sheriff, Admiralty Marshal Thomas Morgan A Registrar, Federal Magistrates Court

Victoria

District Registrar Jamie Wood Deputy Registrar, Australian Competition Tribunal Deputy Registrar, Federal Police Disciplinary Tribunal Deputy Sheriff, Admiralty Marshal A Registrar, Federal Magistrates Court

Deputy District John Efthim A Registrar, Federal Magistrates Court Registrars Tim Connard A Registrar, Federal Magistrates Court

114 Appendix 3 – Registrars of the Court

Registry Name Appointments under other Acts

Jane Mussett A Registrar, Federal Magistrates Court

Queensland

District Registrar Graham Ramsey Deputy Registrar, Australian Competition Tribunal Deputy Registrar, Defence Force Discipline Appeal Tribunal Deputy Registrar, Federal Police Disciplinary Tribunal A Registrar, Federal Magistrates Court

Deputy District Caroline Reynolds A Registrar, Federal Magistrates Court Registrars Heather Baldwin A Registrar, Federal Magistrates Court

David Robson A Registrar, Federal Magistrates Court

Kenneth Berry A Registrar, Federal Magistrates Court

Western Australia

District Registrar Martin Jan PSM Deputy Registrar, Australian Competition Tribunal Deputy Registrar, Federal Police Disciplinary Tribunal Deputy Registrar, Defence Force Discipline Appeal Tribunal A Registrar, Federal Magistrates Court

Deputy District Elizabeth Stanley A Registrar, Federal Magistrates Court Registrars June Eaton A Registrar, Federal Magistrates Court

Rainer Gilich A Registrar, Federal Magistrates Court

South Australia

District Registrar Patricia Christie Deputy Registrar, Australian Competition Tribunal Deputy Registrar, Federal Police Disciplinary Tribunal A Registrar, Federal Magistrates Court

Catherine Cashen A Registrar, Federal Magistrates Court

Tasmania

District Registrar Alan Parrott District Registrar, Administrative Appeals Tribunal Deputy Registrar, Australian Competition Tribunal Deputy Registrar, National Native Title Tribunal A Registrar, Federal Magistrates Court

Australian Capital Territory

District Registrar John Mathieson Registrar, Defence Force Discipline Appeal Tribunal (Based in Sydney) A Registrar, Federal Magistrates Court

115 Federal Court of Australia - Annual Report 2002 - 2003

Registry Name Appointments under other Acts

Deputy District Jennifer Hedge Registrar, Federal Police Disciplinary Tribunal Registrars (Based in Sydney) A Registrar, Federal Magistrates Court

Geoffrey Segal Registrar, Australian Competition Tribunal (Based in Sydney) A Registrar, Federal Magistrates Court

Anthony Tesoriero Secretary, Copyright Tribunal (Based in Sydney) A Registrar, Federal Magistrates Court

Stephanie Kavallaris A Registrar, Federal Magistrates Court (Based in Sydney) Anna Quilter A Registrar, Federal Magistrates Court (Based in Sydney) Kim Lackenby Deputy Registrar, Australian Competition Tribunal (Based in Sydney) Deputy Registrar, Federal Police Disciplinary Tribunal A Registrar, Federal Magistrates Court

Natalie Cujes A Registrar, Federal Magistrates Court

Jill Circosta

Northern Territory

District Registrar Caroline Edwards A Registrar, Federal Magistrates Court Deputy Sheriff, Admiralty Marshal

116 Appendix 4 – Statutes under which the Federal Court of Australia may exercise Jurisdiction

APPENDIX 4

STATUTES UNDER WHICH THE FEDERAL COURT OF AUSTRALIA MAY EXERCISE JURISDICTION (as at 30 June 2003)

[ONLY PRINCIPAL ACTS ARE INCLUDED]

Australian National Railways Commission Sale Aboriginal and Torres Strait Islander Act 1997 Commission Act 1989 Australian Postal Corporation Act 1989 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 Australian Radiation Protection and Nuclear Safety Act 1998 Aboriginal Councils and Associations Act 1976 Australian Securities and Investments Aboriginal Land (Lake Condah and Commission Act 2001 Framlingham Forest) Act 1987 Australian Sports Drug Agency Act 1990 Aboriginal Land Rights (Northern Territory) Act 1976 Australian Wine and Brandy Corporation Act 1980 ACIS Administration Act 1999 Banking Act 1959 Administrative Appeals Tribunal Act 1975 Bankruptcy Act 1966 Administrative Decisions (Judicial Review) Act 1977 Broadcasting Act 1942

Admiralty Act 1988 Broadcasting Services Act 1992

Advance Australia Logo Protection Act 1984 Building Industry Act 1985

Aged Care Act 1997 Charter of the United Nations Act 1945

Agricultural and Veterinary Chemicals Act 1994 Child Support (Registration and Collection) Act 1988 Air Navigation Act 1920 Circuit Layouts Act 1989 Airports Act 1996 Civil Aviation (Carriers’ Liability) Act 1959 Anti-Personnel Mines Convention Act 1998 Coal Industry Repeal Act 2001 Australian Federal Police Act 1979 Commonwealth Authorities and Companies Act 1997 Australian Crime Commission Act 2002 Commonwealth Electoral Act 1918 Australian Industry Development Corporation Act 1970 Commonwealth Places (Mirror Taxes) Act 1998

117 Federal Court of Australia - Annual Report 2002 - 2003

Commonwealth Serum Laboratories Act 1961 Federal Court of Australia Act 1976

Complaints (Australian Federal Police) Act Federal Court of Australia (Consequential 1981 Provisions) Act 1976

Copyright Act 1968 Federal Proceedings (Costs) Act 1981

Corporations Act 2001 Financial Corporations Act 1974

Crimes Act 1914 Financial Sector (Collection of Data) Act 2001

CSL Sale Act 1993 Financial Sector (Shareholdings) Act 1998

Customs Act 1901 Financial Sector (Transfer of Business) Act 1999 Dairy Industry Service Reform Act 2003 Financial Transaction Reports Act 1988 Dairy Produce Act 1986 Fisheries Management Act 1991 Debits Tax Administration Act 1982 Foreign Acquisitions and Takeovers Act 1975 Defence Act 1903 Foreign Evidence Act 1994 Defence Force Discipline Appeals Act 1955 Foreign Judgments Act 1991 Defence Reserve Service (Protection) Act 2001 Foreign Proceedings (Excess of Jurisdiction) Designs Act 1906 Act 1984

Diplomatic and Consular Missions Act 1978 Foreign States Immunities Act 1985

Disability Discrimination Act 1992 Fringe Benefits Tax Assessment Act 1986

Education Services for Overseas Students Act Fuel Quality Standards Act 2000 2000 Gas Pipelines Access (Commonwealth) Act Egg Industry Service Provision Act 2002 1998

Employment Services Act 1994 Gene Technology Act 2000

Environment Protection and Biodiversity Great Barrier Reef Marine Park Act 1975 Conservation Act 1999 Hazardous Waste (Regulation of Exports and Evidence Act 1995 Imports) Act 1989

Evidence and Procedure (New Zealand) Act Health Insurance Act 1973 1994 Health Insurance Commission Act 1973 Excise Act 1901 Health Insurance Commission (Reform and Export Markets Development Grants Act 1997 Separation of Functions) Act 1997

Extradition Act 1988 Hearing Services Administration Act 1997

118 Appendix 4 – Statutes under which the Federal Court of Australia may exercise Jurisdiction

Hearing Services and Aghs Reform Act 1997 National Measurement Act 1960

Horticulture Marketing and Research and National Transmission Network Sale Act 1998 Development Services Act 2000 Native Title Act 1993 Human Rights and Equal Opportunity Commission Act 1986 Navigation Act 1912

Income Tax Assessment Act 1936 Nuclear Non-Proliferation (Safeguards) Act 1987 Industrial Chemicals (Notification and Assessment) Act 1989 Olympic Insignia Protection Act 1987

Industrial Relations Reform Act 1993 Ombudsman Act 1976

Insurance Acquisition and Takeovers Act 1991 Ozone Protection Act 1989

Insurance Act 1973 Parliamentary Privileges Act 1987

Interactive Gambling Act 2001 Patents Act 1990

International Criminal Court Act 2002 Payments Systems (Regulations) Act 1998

International War Crimes Tribunals Act 1995 Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions) Act Judiciary Act 1903 1990

Jurisdiction of Courts (Cross-vesting) Act 1987 Petroleum Products Pricing Act 1981

Jurisdiction of Courts (Miscellaneous Petroleum Resource Rent Tax Assessment Act Amendments) Act 1987 1987

Lands Acquisition Act 1989 Petroleum Retail Marketing Franchise Act 1980

Life Insurance Act 1995 Petroleum Retail Marketing Sites Act 1980

Liquid Fuel Emergency Act 1984 Petroleum (Submerged Lands) Amendment Act 1991 Medical Indemnity (Prudential Supervision and Product Standards) Act 2003 Pigs Industry Act 2001

Members of Parliament (Life Gold Pass) Act Plant Breeder's Rights Act 1994 2002 Prices Surveillance Act 1983 Migration Act 1958 Privacy Act 1988 Moomba-Sydney Pipeline System Sale Act 1994 Private Health Insurance Incentives Act 1997 Motor Vehicle Standards Act 1989 Proceeds of Crime Act 2002 National Environment Protection Measures (Implementation) Act 1998 Protection of the Sea (Oil Pollution Compensation Fund) Act 1993 National Health Act 1953

119 Federal Court of Australia - Annual Report 2002 - 2003

Qantas Sale Act 1992 Termination Payments Tax (Assessment and Collection) Act 1997 Radiocommunications Act 1992 Therapeutic Goods Act 1989 Referendum (Machinery Provisions) Act 1984 Trade Marks Act 1995 Removal of Prisoners (Territories) Act 1968 Trade Practices Act 1974 Renewable Energy (Electricity) Act 2000 Transport Safety Investigation Act 2003 Retirement Savings Account Act 1997 Treasury Bills Act 1914 Royal Commissions Act 1902 Wool International Privatisation Act 1999 Safety, Rehabilitation and Compensation Act 1988 Wool Services Privatisation Act 2000

Sales Tax Assessment Act (No 1) 1930 Workplace Relations Act 1996

Service and Execution of Process Act 1992

Shipping Registration Act 1981

Snowy Hydro Corporatisation Act 1997

Space Activities Act 1998

Superannuation Contributions Tax (Assessment and Collection) Act 1997

Superannuation Industry (Supervision) Act 1993

Superannuation (Resolution of Complaints) Act 1993

Sydney Airport Demand Management Act 1997

Sydney 2000 Games (Indicia and Images) Protection Act 1996

Taxation Administration Act 1953

Telecommunications Act 1997

Telecommunications (Consumer Protection and Service Standards) Act 1999

Telecommunications (Interception) Act 1979

Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997

Telstra Corporation Act 1991

120 Appendix 5 – Workload Statistics

APPENDIX 5

WORKLOAD STATISTICS

Introduction

The statistics in this appendix provide comparative historical information in relation to the work of the Court, in particular, comparative statistics concerning aspects of the Court’s jurisdiction.

When considering the statistics it is important to note that matters vary according to the nature and complexity of the legal issues or evidence in dispute.

It should be noted that, in this report, the figures reported may be marginally different from figures reported in previous years. The variations have occurred through refinements or enhancements to the Court’s FEDCAMS database which necessitated the checking or verification and possible variation of data previously entered and from random audits of earlier data.

121 Federal Court of Australia - Annual Report 2002 - 2003

Table 5.1 – Summary of Workload Statistics Original and Appellate Jurisdiction

Workload 1998-99 1999-00 2000-01 2001-02 2002-03

(1) Total matters and appeals

Filed 8,045 6,276 5,385 4,527 4,840 Completed 7,546 6,613 5,272 4,786 5,296 Current 4,831 4,666 4,795 4,463 3,993

(2) Corporations Law matters and appeals only

Filed 688 9 19 346 461 Completed 835 239 40 243 436 Current 250 46 48 158 191

(3) Bankruptcy matters and appeals only

Filed 3,556 3,084 1,210 602 527 Completed 3,587 3,163 1,742 755 554 Current 1,199 1,168 590 316 246

(4) Native Title matters and appeals only

Filed 884 105 131 127 67 Completed 83 173 107 118 60 Current 854 783 808 831 849

(5) Total matters and appeals (excluding Corporations Law, Bankruptcy and Native Title) Filed 2,917 3,078 4,025 3,452 3,785 Completed 3,041 3,038 3,383 3,670 4,246 Current 2,528 2,669 3,349 3,158 2,707

122 Appendix 5 – Workload Statistics

Table 5.2 – Summary of Workload Statistics (excluding Full Court appeals)

Workload 1998-99 1999-00 2000-01 2001-02 2002-03

(1) Total matters

Filed 7,626 5,869 4,971 3,924 4,218 Completed 7,118 6,120 4,858 4,266 4,651 Current 4,552 4,445 4,550 4,129 3,662

(2) Corporations Law matters only

Filed 668 6 14 342 456 Completed 811 228 36 236 429 Current 239 42 41 154 187

(3) Bankruptcy matters only

Filed 3,522 3,044 1,190 554 482 Completed 3,547 3,121 1,712 715 514 Current 1,181 1,150 579 291 217

(4) Native Title matters only

Filed 875 99 130 124 64 Completed 78 162 105 117 57 Current 845 779 804 825 844

(5) Total matters (excluding Corporations Law, Bankruptcy and Native Title) Filed 2,561 2,720 3,637 2,904 3,216 Completed 2,682 2,609 3,005 3,198 3,651 Current 2,287 2,474 3,126 2,859 2,414

123 Federal Court of Australia - Annual Report 2002 - 2003

Table 5.3 – Summary of Workload Statistics Full Court appeals only

Workload 1998-99 1999-00 2000-01 2001-02 2002-03

(1) Total appeals

Filed 419 407 414 603 622 Completed 428 493 414 520 645 Current 279 221 245 334 331

(2) Corporations Law appeals only

Filed 20 3 5 4 5 Completed 24 11 4 7 7 Current 11 4 7 4 4

(3) Bankruptcy appeals only

Filed 34 40 20 48 45 Completed 40 42 30 40 40 Current 18 18 11 25 29

(4) Native Title appeals only

Filed 9 6 1 3 3 Completed 5 11 2 1 3 Current 9 4 4 6 5

(5) Total appeals (excluding Corporations Law, Bankruptcy and Native Title) Filed 356 358 388 548 569 Completed 359 429 378 472 595 Current 241 195 223 299 293

124 Appendix 5 – Workload Statistics

Figure 5.1

Matters filed 1998-1999 to 2002-2003

9,000 8,045

8,000 419 7,000 6,276

6,000 407 5,385 4,840 5,000 414 4,527 622 603 4,000 7,626

3,000 5,869 4,971 2,000 3,924 4,218

1,000

0 1998-99 1999-00 2000-01 2001-02 2002-03

General Matters Full Court Appeals

The year 1998-99 includes 794 native title matters transferred from the National Native Title Tribunal on 30 September 1998.

125 Federal Court of Australia - Annual Report 2002 - 2003

Figure 5.2

Matters filed and finalised 1998-1999 to 2002-2003

9,000 8,045 8,000 7,546

7,000 6,613 6,276 6,000 5,385 5,272 5,296 4,786 4,840 5,000 4,527

4,000

3,000

2,000

1,000

0 1998-99 1999-00 2000-01 2001-02 2002-03 Number Filed Number Finalised

The number finalised refers to those matters finalised in the relevant financial year regardless of when these matters were originally filed.

The number filed and the number finalised include creditors' petitions and other bankruptcy applications as shown below:

Year Filed Finalised

1998-99 3,522 3,547 1999-00 3,044 3,121 2000-01 1,190 1,712 2001-02 554 715 2002-03 482 514

126 Appendix 5 – Workload Statistics

Figure 5.3

Matters filed from 1998-1999 to 2002-2003

9,000 8,045

7,500 6,276

6,000 5,385 4,840 4,527 4,500

3,000

1,500

0 1998-99 1999-00 2000-01 2001-02 2002-03

The total filed in 1998-99 includes 794 native title matters transferred from the National Native Title Tribunal on 30 September 1998.

Age and number of current matters at 30 June 2003

2,211

2,000

1,500

1,000 558 604 321 500 211

0 1998-99 1999-00 2000-01 2001-02 2002-03

A total of 3,993 matters remain current as at 30 June 2003 including 450 matters transferred from the National Native Title Tribunal. The age of each of these is shown in the graph above. There were 88 applications still current relating to periods before those shown in the graph.

127 Federal Court of Australia - Annual Report 2002 - 2003

Figure 5.4

Time span to complete Matters completed in the period 1 July 1998 to 30 June 2003

70.0% 64.3%

60.0%

50.0%

40.0%

30.0%

20.0% 17.7%

7.2% 10.0% 5.0% 5.8%

0.0% 0 - 6 6 - 12 12 - 18 18 - 24 Over 24 months months months months months

A total of 28,697 matters were completed during the 5-year period ended 30 June 2003, excluding Native Title matters. The time span, from filing to disposition of each of these matters, is shown in the graph above.

128 Appendix 5 – Workload Statistics

Figure 5.5

Time span to complete benchmark 1998-1999 to 2002-2003

100.0

95.0

90.5 90.9 90.9 90.8 90.0

Percent 85.0

80.2 80.0

75.0 1998-99 1999-00 2000-01 2001-02 2002-03

Completed within 18 months 85% Benchmark

The total number of applications, excluding native title applications, completed for each of the last five years and the time span for completion are shown below:

Year Number Percentage Completed

under over 18 months 18 months 1998-99 7,468 90.5 9.5 1999-00 6,451 90.9 9.1 2000-01 5,167 90.9 9.1 2001-02 4,669 90.8 9.2 2002-03 5,089 80.2 19.8

129 Federal Court of Australia - Annual Report 2002 - 2003

Figure 5.6

Corporations Law matters filed 1998-1999 to 2002-2003

900

800

700 668

600

500 456

400 342

300

200

100 6 14 0 1998-99 1999-00 2000-01 2001-02 2002-03

Age and number of current matters at 30 June 2003

151 150

100

50 31 1 0 1 0 1998-99 1999-00 2000-01 2001-02 2002-03

A total of 187 Corporations Law matters remain current at 30 June 2003. The age of each of these is shown in the graph above. There were 3 matters still current relating to periods before those shown in the graph.

130 Appendix 5 – Workload Statistics

Figure 5.7

Trade Practices Act matters filed 1998-1999 to 2002-2003

404 400 347 311 292 300

241

200

100

0 1998-99 1999-00 2000-01 2001-02 2002-03

Age and number of current matters at 30 June 2003

200 178

150 107 100 80 56 50 11 0 1998-99 1999-00 2000-01 2001-02 2002-03

A total of 452 Trade Practices Act matters remain current as at 30 June 2003. The age each of these is shown in the graph above. There were 20 matters still current relating to periods before those shown in the graph.

131 Federal Court of Australia - Annual Report 2002 - 2003

Figure 5.8

Migration Act matters filed 1998-1999 to 2002-2003

1,836 1,800

1,600 1,381 1,400 1,343

1,200 967 1,000 941

800

600

400

200

0 1998-99 1999-00 2000-01 2001-02 2002-03

Some migration applications are filed under the Administrative Decisions (Judicial Review) Act and many are now also filed under the Judiciary Act. These are now included in the figures above. In earlier reports these cases were not included. Since the amendments to the Migration Act on 2 October 2001 the majority of migration applications are now filed under the provisions of the Judiciary Act. To provide an accurate picture of the Court’s migration workload these matters are included above.

Age and number of current matters at 30 June 2003

800 739

600

400

200 0 1 2 17 0 1998-99 1999-00 2000-01 2001-02 2002-03

A total of 760 Migration Act matters remain current as at 30 June 2003. The age of each of these is shown in the graph above. There was one matter still current relating to a period before those shown in the graph.

132 Appendix 5 – Workload Statistics

Figure 5.9

Admiralty Act matters filed 1998-99 to 2002-03

80 70 66 62 60 56 55

40

20

0 1998-99 1999-00 2000-01 2001-02 2002-03

Age and number current matters at 30 June 2003

40 34

20 12

3 3 0 0 1998-99 1999-00 2000-01 2001-02 2002-03

A total of 54 Admiralty Act matters remain current as at 30 June 2003. The age of each of these is shown in the graph above. There were 2 matters still current relating to periods before those shown in the graph.

133 Federal Court of Australia - Annual Report 2002 - 2003

Figure 5.10

Appeals to the Full Court filed 1998-99 to 2002-03

622 603 600

500 419 407 414 400

300

200

100

0 1998-99 1999-00 2000-01 2001-02 2002-03

Age and number of current matters at 30 June 2003

292 300

250

200

150

100

50 24 7 2 5 0 1998-99 1999-00 2000-01 2001-02 2002-03

A total of 331 appeals to the Full Court remain current as at 30 June 2003. The age of each of these is shown in the graph above. There was one appeal still current relating to a period before those shown in the graph.

134 Appendix 5 – Workload Statistics

Figure 5.11

Source of Full Court Appeals filed 1998-99 to 2002-03

Other 600

500

Supreme 400 Courts

300

FMS 200

100

Federal 0 Court 1998-99 1999-00 2000-01 2001-02 2002-03

Source 1998-99 1999-00 2000-01 2001-02 2002-03

Federal 84.0% 85.3% 87.4% 83.3% 60.3% Court 352 347 362 502 375

FMS - - 8 1.9% 66 10.9% 227 36.5% Supreme 13.6% 12.3% 8.2% 4.5% 1.0% Courts 57 50 34 27 6 Other 2.4% 2.5% 2.4% 1.3% 2.3% Sources 10 10 10 8 14

Total 419 100.0% 407 100.0% 414 100.0% 603 100.0% 622 100.0%

Notes The Federal Magistrates Court commenced on 23 June 2000. Appeals from Supreme Courts to the Federal Court have declined following the establishment of the ACT Court of Appeal.

135 Federal Court of Australia - Annual Report 2002 - 2003

Figure 5.12 Native Title Act matters filed 1998-1999 to 2002-2003

900 875

800

700

600

500

400

300

200 130 124 99 100 64

0 1998-99 1999-00 2000-01 2001-02 2002-03

Included in the figures for 1998-99, there were 794 matters transferred from the National Native Title Tribunal on 30 September 1998. Of these, 450 matters remain current as at 30 June 2003.

Age and number of current matters at 30 June 2003

491 500 400 300 200 104 108 100 61 57 0 1998-99 1999-00 2000-01 2001-02 2002-03

A total of 844 Native Title matters remain current as at 30 June 2003 (not including appeals). The age of each of these is shown in the graph above. There were 23 matters still current relating to periods before those shown in the graph. It is important to note that these figures are the cases which remain open on the Court's data base, FEDCAMS. In 160 cases the individual case is effectively closed because it has been combined or consolidated with one or more cases and the matter is proceeding with a lead case. This means that as at 30 June 2003, there were, in practical terms, 611 active native title claimant applications. More details on the statistics are included in Chapter 3 on page 39.

136 Appendix 6 – Work of Tribunals

APPENDIX 6

WORK OF TRIBUNALS

The following summarises the work of the Australian Competition Tribunal, the Copyright Tribunal, the Defence Force Discipline Appeal Tribunal and the Federal Police Disciplinary Tribunal during the reporting year.

Australian Competition Tribunal

Functions and powers

The Australian Competition Tribunal was established under the Trade Practices Act to hear applications for the review of:

• determinations by the Australian Competition and Consumer Commission (“ACCC”) in relation to the grant or revocation of authorisations which permit conduct or arrangements that would otherwise be prohibited under the Trade Practices Act for being anti-competitive; • decisions by the Minister or the ACCC in relation to allowing third parties to have access to the services of essential facilities of national significance, such as electricity grids or gas pipelines; and • determinations by the ACCC in relation to notices issued under section 93 of the Trade Practices Act in relation to exclusive dealing.

A review by the Tribunal is a re-hearing or a re-consideration of a matter, and it may perform all the functions and exercise all the powers of the original decision-maker for the purposes of the review. It can affirm, set aside or vary the decision under review.

The Minister may also refer to the Tribunal, for inquiry and report, issues concerning certain practices by ocean cargo carriers.

Practice and procedure

Hearings before the Tribunal normally take place in public. Parties may be represented by a lawyer. The procedure of the Tribunal is subject to the Trade Practices Act and regulations within the discretion of the Tribunal. The Trade Practices Regulations 1974 sets out some procedural requirements in relation to the making and hearing of review applications.

Proceedings are conducted with as little formality and technicality and with as much expedition as the requirements of the Act and a proper consideration of the matters before the Tribunal permit. The Tribunal is not bound by the rules of evidence.

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Membership and staff

The Tribunal consists of a President and such number of Deputy Presidents and other members as are appointed by the Governor-General.

During the reporting year, the President of the Tribunal was Justice von Doussa (resigned 6 June 2003) and the Deputy Presidents were Justices Cooper, Goldberg and Hely.

The Registrar and Deputy Registrars of the Tribunal are all officers of the Federal Court. Their details are set out in Appendix 3 on page 114.

Activities

Five review proceedings were current at the start of the reporting year. During the year, four proceedings were commenced and six matters were finalised. Three matters are pending.

No complaints were made to the Tribunal about its procedures, rules, forms, timeliness or courtesy to users during the reporting year.

Copyright Tribunal

Functions and powers

The Copyright Tribunal was established under the Copyright Act 1968 to hear applications dealing with four main types of matters:

• to determine the amounts of equitable remuneration payable under statutory licensing schemes; • to determine a wide range of ancillary issues with respect to the operation of statutory licensing schemes, such as the determination of sampling systems; • to declare that the applicant (a company limited by guarantee) be a collecting society in relation to copying for the services of the Commonwealth or a State; and • to determine a wide range of issues in relation to the statutory licensing scheme in favor of government."

Practice and procedure

Hearings before the Tribunal normally take place in public. Parties may be represented by a lawyer. The procedure of the Tribunal is, subject to the Copyright Act and regulations, within the discretion of the Tribunal. The Copyright Tribunal (Procedure) Regulations 1969 sets out procedural requirements for the making and hearing of applications.

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Proceedings are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and a proper consideration of the matters before the Tribunal permit. The Tribunal is not bound by the rules of evidence.

Membership and staff

The Tribunal consists of a President and such number of Deputy Presidents and other members as are appointed by the Governor-General. There were no changes to the membership of the Tribunal during the year.

The Secretary of the Tribunal is an officer of the Federal Court. Details of the Secretary are set out in Appendix 3 on page 114.

Activities

Six matters were current at the start of the reporting year. During the year, two matters were commenced, and four matters were finalised. Four matters are pending.

No complaints were made to the Tribunal about its procedures, rules, forms, timeliness or courtesy to users during the reporting year.

Defence Force Discipline Appeal Tribunal

Functions and powers

The Defence Force Discipline Appeal Tribunal was established under the Defence Force Discipline Appeals Act 1974 to hear and determine appeals by persons who have been: • convicted of a service offence, or • who have been acquitted of a service offence on the ground of unsoundness of mind (“a prescribed acquittal”) by a court martial or a Defence Force Magistrate under the Defence Force Discipline Act 1982.

The Tribunal may dismiss or allow the appeal, substitute for a conviction a prescribed acquittal, or, if satisfied the appellant was unfit to stand trial, quash the conviction or prescribed acquittal and direct that the appellant be kept in strict custody until the pleasure of the Governor-General is known.

Practice and procedure

Hearings before the Tribunal normally take place in public. Parties may be represented by a lawyer. The procedure of the Tribunal is within its discretion.

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Membership and staff

The Tribunal consists of a President, a Deputy President and such other members as are appointed by the Governor-General. During the reporting year, the President of the Tribunal was Justice Heerey.

The Registrar and Deputy Registrars of the Tribunal are officers of the Federal Court. Their details are set out in Appendix 3 on page 114.

Activities

Three proceedings were current at the start of the reporting year. During the year, five proceedings were commenced and four were finalised. Four matters are pending.

No complaints were made to the Tribunal about its procedures, rules, forms, timeliness or courtesy to users during the reporting year.

Federal Police Disciplinary Tribunal

Functions and powers

The Federal Police Disciplinary Tribunal was established under the Complaints (Australian Federal Police) Act 1981 to deal with disciplinary offences under the Australian Federal Police (Discipline) Regulations. In addition, the responsible Minister may refer to the Tribunal for inquiry and report a matter relating to the Australian Federal Police.

Practice and procedure

Hearings before the Tribunal normally take place in public. Parties may be represented by a lawyer. Proceedings are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and a proper consideration of the matters before the Tribunal permit. The Tribunal is not bound by the rules of evidence.

Membership and staff

The Tribunal consists of a President and such number of Deputy Presidents and other members as are appointed by the Governor-General.

During the reporting year, the President of the Tribunal was Justice Whitlam. Justice Kiefel and Justice Weinberg were appointed as Deputy Presidents on 8 October 2001 for five years.

The Registrar and Deputy Registrars of the Tribunal are all officers of the Federal Court. Their details are set out in Appendix 3 on page 114.

140 Appendix 6 – Work of Tribunals

Activities

No disciplinary proceedings were current at the start of the reporting year. During the year, no proceedings were commenced. Nor were any matters referred by the Minister for inquiry and report.

No complaints were made to the Tribunal about its operations during the reporting year.

141 Federal Court of Australia - Annual Report 2002 - 2003

APPENDIX 7

SUMMARY OF DECISIONS OF INTEREST

(1) Constitutional law – Parliamentary election – Petition challenging entirety of general election Gunter v Hollingworth (30 July 2002, Justice Cooper)

On 12 December 2001, Mr Gunter filed a petition in the High Court of Australia sitting as the Court of Disputed Returns. Mr Gunter pleaded that he was qualified to vote, and did vote, in the election of a member for the Division of Blair in the House of Representatives and in the election for Senators for Queensland in the Senate.

The petition named as respondents the Governor-General, the Governor of Queensland, the Premier of Queensland and the Australian Electoral Commission (‘the Commission’). The fifth, sixth, seventh, eighth and ninth respondents filed entries of appearance in the petition proceedings as electors enrolled to vote in the electoral divisions of Ryan, Moreton and Oxley.

In essence, Mr Gunter claimed that the general election for the entire House of Representatives and half of the Senate, held on 10 November 2001, was invalid by reason that the Governor-General and the Governor of Queensland lacked the requisite legal power to initiate such an election. The petition alleged that the office of Governor-General had failed to properly discharge the functions of that office since the time of federation with the consequent effect that ‘... the intent of the Constitution has never really been met.’ Mr Gunter further alleged that the payment of a nomination deposit by parliamentary candidates was ineffective as such deposits were paid in the form of ‘paper money’ which was not ‘legal tender’ in Australia.

This petition was supported by the fifth and sixth respondents. The seventh and eight respondents, claiming to appear as citizens of the Independent Sovereign State of Australia, also supported the petition, with the eighth respondent claiming to be the Chief Justice of the Supreme Court of the Independent Sovereign State of Australia and seeking to appear in that capacity.

The Commission sought to have the petition dismissed on the grounds that: • the Court of Disputed Returns has no jurisdiction where it is claimed that the entirety of a general election is void • the petition failed to set out any facts which would invalidate the election.

Mr Gunter and the respondents in support of the petition disputed the contention that a petition must be limited to one electorate only, and submitted that section 353(1) of the Commonwealth Electoral Act 1918 (“the Act”) permits the entirety of a general election to be challenged as invalid in a single petition to the Court of Disputed Returns.

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After applying Part XXII of the Act and considering the decision of Brennan ACJ in Muldowney v Australian Electoral Commission, Justice Cooper found in relation to the first ground that:

[T]he Court of Disputed Returns only has jurisdiction to hear and determine a petition from the petitioner limited to disputing the validity of the election or return for the member for the Division of Blair in the House of Representatives election and for the Senators in the election of Senators for the State of Queensland.…

A person who was not entitled to vote at the election the subject of the petition has no right to appear on the petition and be made a party to it... Thus the fifth, sixth, seventh, eighth and ninth respondents could not, by entering an appearance, individually challenge the elections in the Divisions of Ryan, Moreton or Oxley. Nor were they qualified to enter an appearance in so far as the petition related, if it did, solely to the election in the Division of Blair.

In relation to the second ground, his Honour found that the petition did not set out the facts relied on to invalidate the election as required by section 355(a) of the Act, and concluded that there were no facts alleged which would entitle Mr Gunter to the relief claimed even if the prayer for relief could be read down to bring the petition within the jurisdiction of the Court of Disputed Returns.

Further, his Honour found that the argument questioning the legality of Australian tender had previously been totally rejected as wrong in law.

Having found that the petition was incorrectly brought on both grounds pleaded by the Commission, his Honour dismissed the petition pursuant to the power conferred by section 360(1)(viii) of the Act.

(2) Administrative Law – Judicial review of a decision to grant a licence to construct a nuclear reactor Greenpeace Australia Pacific v Chief Executive Officer of the Australian Radiation Protection Authority & Nuclear Safety Agency (13 September 2002, Justice Beaumont)

In May 2001, the Chief Executive Officer (“the CEO”) of the Australian Radiation Protection and Nuclear Safety Agency, received an application from the Australian Nuclear Science and Technology Organisation to construct a nuclear reactor facility at Lucas Heights, in Sydney’s southern suburbs. The application concerned a proposal to build a new research reactor to replace the existing facility in that area. The CEO proceeded to accept public submissions on the proposal and in April 2002 made a decision in favour of issuing the licence.

Under the Australian Radiation Protection and Nuclear Safety Act 1998 (Cth) (“the Act”), the CEO was empowered to issue licences in relation to nuclear facilities, including for the construction of such a facility. The stated purpose of the Act was “to protect the health and safety of people, and to protect the environment, from the harmful effects of radiation”. When considering whether to grant a licence, the CEO was required by s 32(3) of the Act to “take into account international best practice in relation to radiation protection and nuclear safety”.

Greenpeace, a well known environmental interest group, sought judicial review of the CEO’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

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They submitted that the CEO, in reaching his decision, failed both to consider the management, handling, transport, processing and storage of spent nuclear fuel and radioactive waste, and, to ascertain and take account of international best practice in these areas. Greenpeace applied to set the decision aside claiming that as a result of these omissions: • there was a failure to observe the procedures required by law, and/or • there was an improper exercise of the power conferred by the Act in that the CEO failed to take into account a relevant consideration, and/or • the decision involved an error of law.

His Honour held that, in respect of the allegation that there was a failure to observe the procedures required by law, Greenpeace needed to demonstrate a procedural irregularity or defect on the CEO’s decision-making. He found that Greenpeace had not been able to point to any such irregularity or defect.

In relation to the claim that the CEO had failed to take into account a relevant consideration, Justice Beaumont held that the matters which were required to be taken into account by the CEO when making a decision under the Act were dependent upon the nature of the application in respect of which a decision was being made. In this case, the Act provided that an application to construct a reactor required the CEO to consider different factors than would be required upon an application to operate such a facility. The safety and protection factors involved in the management of reactor waste and spent fuel, and the international best practice standards in this area, were not specifically required to be taken into account when considering the construction proposal. Accordingly the CEO had not failed to take into account a relevant consideration. In any event, Justice Beaumont held that the written decision of the CEO indicated that he had properly considered many of these issues and addressed the concerns raised in a number of public submissions.

Finally, his Honour held that no error of law had been demonstrated; let alone an error that may have had a material effect upon the outcome of the CEO’s decision.

The application was dismissed.

(3) Administrative law – Judicial Review of appointment of Chief Magistrate of Northern Territory North Australian Aboriginal Legal Service Inc v Bradley (27 September 2002, Chief Justice Black, Justices Drummond and Hely)

The North Australian Aboriginal Legal Service Inc (“NAALAS”) sought a declaration that the appointment of Hugh Bradley as Chief Magistrate of the Northern Territory was invalid. NAALAS commenced the proceeding in the Supreme Court of the Northern Territory. Justice Olney, sitting as a judge of the Supreme Court of the Northern Territory, gave summary judgment in favour of the Northern Territory. NAALAS succeeded in an appeal from that decision and the judgment was set aside. The High Court refused special leave, indicating that any consideration of the Northern Territory’s arguments should be postponed until after relevant findings of fact had been made at trial. Justice Olney then ordered that the proceeding be cross- vested from the Supreme Court to the Federal Court.

144 Appendix 7 – Summary of Decisions of Interest

On 7 December 2001, Justice Weinberg dismissed NAALAS’ application. NAALAS then appealed to the Full Court of the Federal Court.

The primary judge found that the former Chief Magistrate resigned on 20 November 1997, in part at least as a result of his dissatisfaction with the mandatory sentencing regime in the Northern Territory. After extensive negotiations, Mr Bradley was appointed as Chief Magistrate by the Administrator, on the advice of the Executive Council. On appointment, Mr Bradley received a special remuneration package of two years duration.

Concurrently with Mr Bradley’s appointment, the Government had been considering the introduction of contract or fixed term appointments for magistrates, but this plan was ultimately not pursued. The primary judge found that Mr Bradley’s remuneration package resulted from an assumption that he would be appointed under this new fixed term arrangement and the fact that he had indicated that he would only remain in the position for a couple of years. When the concept of fixed term appointments was abandoned, the Attorney General and some of his departmental officers, failed to appreciate that this made the special remuneration package inappropriate.

On appeal, NAALAS argued that the primary judge should have found that Mr Bradley had been appointed for an improper or extraneous purpose. It contended that the inevitable consequence of the special remuneration package was that Mr Bradley would be forced to renegotiate the terms and conditions of his continued appointment if he chose not to resign after two years and that this was a consequence known to and intended by those advising the Administrator of the Northern Territory.

NAALAS also contended that Mr Bradley’s appointment as Chief Magistrate was ultra vires the power of appointment in the Magistrates’ Act because the power of appointment was limited to appointment to an office for which there was in force a valid remuneration determination. NAALAS argued that the special remuneration package negotiated with Mr Bradley was not a valid remuneration determination, because it applied for a period of two years only, was limited to expire before Mr Bradley reached the age of 65, and made no provision for remuneration and allowances at the end of that two-year period. NAALAS alleged that this subverted the implicit requirement in the Magistrates Act 1977 (NT) (“the Magistrates Act”) that judicial independence be protected.

Finally, NAALAS argued that if, contrary to its allegations of improper and extraneous purpose and its claim of ultra vires, the Magistrates Act purported to authorise Mr Bradley’s appointment, some sections in the Act violated the protection afforded to the principles of judicial independence by Chapter III of the Constitution and, therefore, had to be read down.

Chief Justice Black and Justice Hely (Justice Drummond dissenting) dealt firstly with the ultra vires claim. They found that the Magistrates Act evinced a legislative intention to secure an independent and impartial magistracy, but held that there was nothing in the terms of the relevant sections of the Magistrates Act that made the appointment of a magistrate conditional on the existence of a valid remuneration determination. Further, they held that there was nothing in the section relating to the making of remuneration determinations that prevented the making of fixed term

145 Federal Court of Australia - Annual Report 2002 - 2003 remuneration determination. Therefore, Mr Bradley’s appointment was not ultra vires and his remuneration was validly determined by the special remuneration package.

The Full Court further held that as successive short term remuneration determinations were permitted under the Magistrates Act, Mr Bradley’s appointment on the basis of a short term remuneration package fell within the scope of the Act and that there was, therefore, no improper purpose.

Finally, the Full Court held that the primary judge was correct in finding that he was bound by existing authority to find that the provisions of the Magistrates Act were not unconstitutional. They held that the courts of the Northern Territory were not “federal courts” and did not exercise the judicial power of the Commonwealth. Therefore, the requirements of undiminished remuneration contained in section 72 of the Constitution did not apply. Rather, it was for the Northern Territory to determine matters relating to the appointment, tenure and remuneration of Territory judges and magistrates.

(4) Trade practices - Whether an advertising agency could be liable for misleading or deceptive representations as a principal rather than via accessorial liability. Cassidy v NRMA Health (3 October 2002, Justice Jacobson)

The applicants (“ACCC and ASIC”) sought declaratory and injunctive relief in respect of an alleged breach by the fifth respondent (“Saatchi”) of section 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (“ASIC Act”) (which corresponds to section 52(1) of the Trade Practices Act 1974 (Cth) (“TPA”)). The principal issue was whether Saatchi, an advertising agency, was liable for making misleading statements contained in an advertisement it prepared for its client, NRMA. The substance of the advertisement, which was admitted by Saatchi to be misleading, was that pregnant women who purchased a new NRMA health insurance product would be able to have their babies delivered without making any payment for the related hospitalisation and medical expenses. Saatchi prepared the advertisement after obtaining NRMA’s approval of an “ideas brief”. The final draft of the advertisement prepared by Saatchi was approved by NRMA’s legal counsel after which NRMA engaged a third party to place the advertisement in various publications. Saatchi’s name and key number appeared in small type at the bottom of the advertisements.

Counsel for ACCC and ASIC argued that Saatchi made the representation in contravention of section 12DA because it prepared the advertisements knowing and intending that the advertisements would be published in various publications. Counsel argued that Saatchi’s liability should be determined in accordance with the defamation law principle that all persons who are accessories to the publication of a libel are considered to be principals in the act of publication. It was argued that Saatchi had published the advertisements in conjunction with NRMA and thereby made the misleading representations contained therein, and that support for these submissions could be found in the fact that the name “Saatchi” appeared on the advertisements.

Counsel for Saatchi contended that the advertisement could not be read as an advertisement for Saatchi and was clearly an advertisement for NRMA companies.

146 Appendix 7 – Summary of Decisions of Interest

Counsel relied upon the structure of the ASIC Act which distinguishes between principal and accessory liability, and upon authorities dealing with the meaning of “representation” under section 53 of the TPA. Counsel submitted that the effect of those authorities was that it was necessary to separate the roles of the parties involved in the publication to determine who actually made the representation.

Justice Jacobson dismissed the application. He found that the misleading representation was, as a factual matter, made by NRMA. There was nothing in the advertisement that could convey to the relevant section of the public that the representation was made by Saatchi. Although Saatchi’s name appeared on the advertisement, the size of the print and its position in the advertisement was insufficient for it to indicate that Saatchi had made the representation or was party to a joint representation.

Justice Jacobson also held that there is no scope for the application of defamation principles to the ASIC Act or TPA. The statutory schemes of the ASIC Act and TPA distinguish between principal and accessorial liability, and are inconsistent with common law liability and defences in the law of defamation. The fact that section 12DA, like section 52 of the TPA, is of wide import does not allow a further widening of liability by reference to principles under the common law.

This case is the subject of an appeal to the Full Court of the Federal Court.

(5) Administrative Law – Royal Commissions – Role of the Court in reviewing the conduct of Royal Commission Ferguson v Cole (20 November 2002, Justice Branson)

In 2001 a Royal Commission (“the Commission”) was established to inquire into and report on certain matters in relation to the building and construction industry. During the inquiry an application was made to the Court effectively seeking that the Royal Commissioner (“the Commissioner”) be disqualified from making certain findings, or any reports or recommendations in relation to New South Wales which may have had an adverse impact on the applicants. This followed an unsuccessful application to the Commissioner himself seeking the same disqualification. Each of the applicants was a member or official, or ex-member or ex-official, of the Construction, Forestry, Mining and Energy Union, Construction and General Division, New South Wales Branch.

The Commissioner was appointed by Letters Patent, requiring him to conduct his inquiry ‘as expeditiously as possible’. After 126 days of taking evidence and hearing from 445 witnesses, the Commissioner furnished to the Governor-General a document entitled ‘First Report’.

The First Report stated that Commissioner was satisfied that material he had received evidenced certain practices and conduct which exhibited inappropriate and unlawful conduct which he listed in general terms. This list was premised by a statement that it was not appropriate for him to address specific evidence, material or submissions and that detailed findings of fact would be made in his final report.

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The applicants claimed that the Commissioner had shown actual bias on the basis of prejudgment towards them or, alternatively, by his conduct had given rise to a reasonable apprehension of bias towards them. They also asserted denials of procedural fairness by reason of the process of inquiry adopted by the Commissioner.

Procedural Fairness

At the heart of the claim of procedural unfairness were two complaints. One was the applicants’ dissatisfaction with the procedures outlined in a particular practice note, which provided for notice to be given, if practicable, to a person who would be the subject of adverse evidence before the tribunal. It also set out when the Commission would authorise people to appear before it and the procedure for calling witnesses and the manner in which examination and cross-examination were to take place. The applicants contended that the practice note allowed for a process to be adopted by the Commissioner which was unfair.

Further, the applicants contended that the issuing of the First Report and the findings therein before the conclusion of the applicants’ evidence was a breach of “the hearing rule”, being the rule that any person represented at an inquiry who might be affected adversely by a finding should know of the risk of such a finding being made and be given an opportunity to present additional material that might deter the Commissioner from making that finding.

Justice Branson concluded that the Commissioner was under no duty to afford the applicants, or any of them, an opportunity to adduce additional material that might have deterred the Commissioner from making the findings and recommendations set out in the First Report because, whilst the rules of natural justice imposed obligations on the Commissioner, it had not been demonstrated that the Commissioner’s findings affected the interest of any applicant or the applicants as a group “in a sufficiently individual, direct and immediate way” so as to as to require that an applicant, or the applicants generally, be afforded an opportunity to adduce additional material in the manner required by the hearing rule.

The other key complaint was the applicants’ dissatisfaction with the scope and nature of the task committed to the Commissioner by the Letters Patent. The applicants argued that the reference therein to an inquiry into ‘the nature, extent, and effect of any unlawful or otherwise inappropriate workplace practice or conduct’ did not authorise the Commissioner to inquire into particular conduct and determine for himself whether that conduct was unlawful.

Justice Branson rejected the contention that the First Report made findings that the applicants had engaged in criminal conduct, nor did she accept that these findings adversely affected the interests of the applicants. Justice Branson found that, although a Commission’s determination of guilt had no legal consequences, the Executive Government had the power to appoint a Commissioner to inquire into and report on whether any person had been guilty of a crime.

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Bias

The issuing of the First Report before the conclusion of the applicants’ evidence and before the hearing of the applicants’ submissions was central to the applicants’ claims of actual and apprehended bias. The applicants asserted that the First Report contained a number of conclusions about the conduct of the applicants which were a prejudgment of the issues and demonstrated actual bias. Justice Branson noted that the publication of the First Report might well have generated an expectation that the Commissioner’s final report would make findings and recommendations of a particular kind. However, her Honour concluded that the Commissioner had not, in the First Report, made any detailed findings of fact, nor had he committed to any conclusion already formed so as to be incapable of altering it, whatever additional material might have been later presented. Accordingly there had been no prejudgment of the issues.

She also found that neither the contents of the First Report nor the circumstances surrounding its publication had been such as to cause the applicants or the public a reasonable apprehension that the Commissioner might have been so prejudiced in favour of a conclusion or conclusions already formed that he would not have been able to alter that conclusion or those conclusions irrespective of the evidence of the applicants or the submissions advanced on their behalves. Thus the applicants had not been able to demonstrate apprehended bias.

The application was dismissed.

(6) Native Title – Inconsistency between state legislation and the right to negotiate in the Native Title Act 1993 (Cth) Queensland v Central Queensland Land Council Aboriginal Corporation Attorney-General (Cth) v Central Queensland Land Council Aboriginal Corporation (27 November 2002, Justices Beaumont, Lee and Kiefel)

The Native Title Act 1993 (Cth) (“the NTA”) establishes a process to be followed where future acts, such as the conferral of mining leases, will affect Native Title interests. Where a future act is proposed, various interested parties have a statutory right to negotiate in accordance with the scheme created by Subdivision P of Part 2 of the NTA.

To the extent that it affects Native Title interests, a future act will be invalid where there has not been compliance with Subdivision P. However, section 43 of the NTA provides that if: • a State or Territory law contains alternative provisions to the negotiation scheme in Subdivision P; and • the Commonwealth Minister determines that these alternative provisions comply with the requirements expressed in the NTA. then, while the determination is in force, the alternative provisions have effect instead of the scheme in Subdivision P.

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In 1998 and 1999 the Queensland Parliament enacted two acts amending the Mineral Resources Act 1989 (Qld) (“the State Amendments”). The State Amendments removed the right to negotiate and substituted provisions providing for consultation, mediation and hearing of applications by the Queensland Land and Resources Tribunal.

The State Amendments received royal assent on 27 November 1998 and 29 July 1999 respectively, but the substantive provisions of the State Amendments did not come into force until 18 September 2000. On 31 May 2000 the Commonwealth Attorney- General made determinations under section 43 of the NTA to the effect that the State Amendments (enacted but not at that time in force) were valid alternative provisions. These determinations also came into force on 18 September 2000 upon notification in the Gazette.

Upon the application of the Central Queensland Land Council Aboriginal Corporation (“CQLCAC”), the primary Judge held the Attorney-General’s declarations were invalid. It was held that, under section 43 of the NTA, before the Attorney-General could validly make a declaration, the alternative provisions of the State legislation must be enacted and in force. The State and the Commonwealth Attorneys-General appealed this decision.

The Full Court unanimously upheld the appeal. Justice Beaumont found that the effect of legislation that has been enacted but has not commenced operation depends upon the context in which it is considered. While such legislation may not establish rights under private law, it may nevertheless have legal relevance. Justice Beaumont held that, in this case, once the State Amendments were enacted they were ‘a law’ for the purposes of section 43. Upon enactment, the substance of the alternative provisions proposed by Queensland was clear and the Attorney-General could validly determine whether the requirements of section 43 were satisfied. The date that the State Amendments came into force was a procedural consideration that was not relevant to the Commonwealth Attorney-General’s inquiry, nor was it within his power to control.

Justice Lee held that section 43 ‘disengaged’ section 109 of the Commonwealth Constitution, which renders State laws ineffective where they are inconsistent with Commonwealth laws. Thus, although the State Amendments were inconsistent with the right to negotiate in the NTA, they could still have effect provided the Attorney- General’s determination was valid. Justice Lee held that, upon the enactment of the State Amendments, the Attorney-General could both form an opinion as to whether the requirements of section 43 were satisfied and make a determination to that effect. However, his Honour held that a requirement of certainty meant that the determinations could not come into force until after the State Amendments had commenced operation. In this case, although the Attorney-General’s determinations had been made before the commencement of the State Amendments, the determinations did not take effect until notification in the Gazette on 18 September 2000, by which time the State Amendments had become operative.

Justice Kiefel adopted a purposive approach. The intent of section 43 of the NTA was to allow the States to create alternatives to the Commonwealth scheme. Her Honour inferred from the circumstances that the Commonwealth and Queensland

150 Appendix 7 – Summary of Decisions of Interest

Governments were cooperating to establish such an alternative scheme. Justice Kiefel held that, for the alternative scheme to have any operation, both State Amendments and the Commonwealth determinations must be in force. However there was no requirement that the determinations be made after the commencement of the State Amendments. It was sufficient that the determinations were made after the State Amendments were enacted.

Justice Kiefel also considered CQLCAC’s cross-appeal. CQLCAC argued that the State Amendments, by removing the right to negotiate, constituted future acts that placed native title holders in a more disadvantageous position than ordinary title holders. It was further claimed that this outcome invalidated the State Amendments because it was inconsistent with the NTA and the Racial Discrimination Act 1975 (Cth) (“the RDA”).

Justice Kiefel, with whom Justices Beaumont and Lee agreed, rejected the cross- appeal on the basis that: • as it is the determinations by the Attorney-General under section 43 of the NTA, and not the State Amendments, that remove the right to negotiate, this was not a case of a State law being inconsistent with a Commonwealth Law. • in any event, the State Amendments (or the Attorney-General’s determinations) were not inconsistent with the RDA. While the NTA is to be construed with regard to the RDA and any powers exercised under the provisions of the NTA are subject to the RDA, the RDA does not operate to alter the procedures developed by the NTA to give effect to Native Title, even if those procedures treat Native Title holders and ordinary title holders differently. • finally, the State Amendments were not future acts as defined by the NTA. The Amendments only affected procedural rights and did not interfere with Native Title interests.

(7) Constitutional Law – Whether claims not justiciable or enforceable as requiring for their determination the adjudication of acts of State or the validity, meaning and effect of the transactions of foreign sovereign States Petrotimor Companhia de Petroles S.A.R.L v Commonwealth of Australia (3 February 2003, Chief Justice Black, Justices Beaumont and Hill)

This case involved questions about the Timor Gap Treaty between Australia and Indonesia and the extent to which a Court may consider the transactions of foreign States.

The applicant companies, Petrotimor Companhia de Petroles and Oceanic Exploration Company, claimed to have been granted exploration and exploitation rights over a part of the continental shelf, under a 1974 Concession Agreement with the Government of Portugal (on behalf of Portuguese Timor). At the time the concession agreement was entered into, Australia and Portugal both claimed, under international law, sovereignty over the continental shelf in the concession area. Australia’s claim to sovereignty was formalised in 1989 when Australia and Indonesia entered into the Timor Gap Treaty and in 1990 when Australia enacted the Petroleum (Australia- Indonesia Zone of Cooperation) Act 1990 (Cth). The Treaty and the Act purported to govern access to natural resources (through a Joint Authority) in a Zone of Cooperation, which included the concession area. Production sharing agreements

151 Federal Court of Australia - Annual Report 2002 - 2003 covering the concession area were entered into with the Phillips Companies (related petroleum exploration and exploitation companies) pursuant to the Treaty and the Act.

The applicants brought this action against the Commonwealth of Australia, the Joint Authority (established under the 1989 Timor Gap Treaty between Australia and Indonesia) and the Phillips companies, claiming that their actions had resulted in the unlawful expropriation of the applicants’ rights to prospect, investigate, develop and exploit hydrocarbons in the Concession Area. They sought compensation.

The Chief Justice determined that a Full Court should consider, as a separate question, whether the Federal Court had jurisdiction to consider the applicants’ claim, given that it required the Court to adjudicate upon the Executive’s exercise of the prerogative in relation to foreign affairs (defining the territorial boundaries of Australia), an Act of State of a foreign government (the grant of a concession by Portugal to the applicants) and the validity, meaning and effect of transactions of foreign states.

The Full Court held, relying on well-established common law principles, that the Court had no jurisdiction to determine the validity of the grant of the concessions to the applicants by the Portuguese government. The Court held that domestic courts generally do not have jurisdiction to adjudicate upon the validity of, or to enforce, rights granted by a foreign sovereign. The Full Court also held that the applicants’ claim did not give rise to a justiciable ‘matter’ because assessing the legitimacy of acts of a foreign state did not fall within any of the areas of jurisdiction conferred upon the Court.

The Full Court held that, in any case, judicial restraint was required because any court decision in this area had the potential to compromise Australia’s foreign relations, particularly in light of the negotiations then in progress between Australian and East Timor about the future exploitation of the Timor Gap.

(8) Trade Practices – Domain names and cybersquatting – Misleading and deceptive conduct CSR Limited v Resource Capital Australia Pty Ltd (4 April 2003, Justice Hill)

Resource Capital Australia Pty Ltd (“RCA”), the sole director of which was a man named Marcus Boland, had registered the business names “CSR Sugar Supply” and “Combined Sugar Retailers Sugar Supply”. The domain names “csrsugar.com” and “csrsugar.com.au” were subsequently registered on the basis of those business names.

RCA approached CSR Limited (“CSR”) offering to transfer the domain names to it for a fee, shares or consultancy work in a manner that significantly exceeded the registration costs of the names. RCA claimed that it had registered the domain names to protect CSR by ensuring that the domain names (as valuable intellectual property) were proactively managed to maximise benefits to the shareholders of CSR.

CSR brought an action against RCA and Boland alleging breaches of sections 52 and 53 of the Trade Practices Act 1974 (Cth) (“TPA”), passing off and a breach of section 120 of the Trade Marks Act 1995 (Cth) (“Trade Marks Act”) and asking the

152 Appendix 7 – Summary of Decisions of Interest

Court to restrain the respondents from using the letters or names “csr” or “csrsugar” as part of a domain name or otherwise.

Justice Hill found that RCA’s and Boland’s intentions were not altruistic but motivated by the expectation of profitable fees for the transfers of the domain name, or through pressuring CSR to engage Mr Boland’s services as an intellectual property consultant. There was evidence before the Court suggesting that RCA had made the same offers to other companies in similar circumstances, which in at least one case had resulted in a World Intellectual Property Organisation Panel finding that RCA had engaged in cybersquatting.

Justice Hill held that obtaining the registration of both domain names, “csrsugar.com” and “csrsugar.com.au” implied that the domain name belonged to CSR or that RCA was in some way connected with CSR, and that a person seeing the domain names would make those assumptions. It alternatively constituted a representation that CSR and RCA were affiliated.

Consequently, the act of obtaining registration of both domain names constituted conduct that was misleading and deceptive or was likely to mislead and deceive persons and amounted to a breach of section 52 of the TPA.

Justice Hill also found that there was difficulty in granting relief under the Trade Marks Act. It could not be said that section 120 of the Trade Marks Act (which relates to infringement of trade marks) had been breached, as RCA had never seriously intended to engage in the sugar trade, or even to use the domain names as trade marks in relation to either goods or services.

Justice Hill ordered that the “csrsugar.com” domain name be transferred to CSR and granted injunctions restraining RCA or Mr Boland from using “CSR” or “CSR Sugar” or any similar name as part of any domain or other name.

Justice Hill also directed that a copy of the judgment be provided to the domain name Registrar Melbourne IT Limited:

... with the suggestion that when dealing with RCA or Mr Boland or any company in which Mr Boland is a director, it require from him a statutory declaration both that at the time he seeks registration he is unaware of any trade mark or business or company name identical with or substantially similar to the domain name he seeks to register and does not hope or intend to transfer or agree to transfer that domain name to another person.

(9) Migration – Mandatory detention of unlawful non-citizen pending removal – whether continued detention is authorised when there is no real likelihood or prospect of removal in the reasonably foreseeable future

Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (15 April 2003, Chief Justice Black, Justices Sundberg and Weinberg)

153 Federal Court of Australia - Annual Report 2002 - 2003

In this case the issue for the Full Court of the Federal Court was whether the Migration Act 1958 (‘the Act’) authorised indefinite detention of an unlawful non- citizen in circumstances where there was no real likelihood or prospect of removal in the reasonably foreseeable future.

The respondent, Mr Al Masri, was a Palestinian from the Gaza Strip. He arrived in Australia in June 2001 as an unlawful non-citizen and soon after his arrival was placed in detention. He lodged an application for a protection visa, claiming to be a refugee. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the application and the Refugee Review Tribunal affirmed the decision of the delegate. Mr Al Masri then made a request in writing, under the provisions of the Act, to be removed to the Gaza Strip. The Department was unable to obtain permission from Israel for his entry. Attempts to obtain permission from Egypt or Jordan for Mr Al Masri to transit those countries to return to the Gaza Strip were unsuccessful. Permission for the removal of Mr Al Masri to Syria was also refused. At the time of the hearing before the trial judge there was no indication of a real likelihood or prospect of Israel agreeing to alter its refusal to permit Mr Al Masri to return.

Mr Al Masri commenced a proceeding in the Federal Court, seeking an order in the nature of habeas corpus for his release from immigration detention. On 15 August 2002, having heard the case urgently, Justice Merkel made orders for Mr Al Masri’s immediate release from detention. His Honour found that the power under the Act to detain an unlawful non-citizen pending removal was impliedly limited to such time as the Minister was taking all reasonable steps to secure the person’s removal as soon as is reasonably practicable, and the removal of the person is “reasonably practicable” in the sense that there must be a real likelihood or prospect of removal in the reasonably foreseeable future.

The Minister applied for a stay of the Judge’s orders pending an appeal but that application was refused on 15 August 2002. Soon afterwards, the Department was able to finalise arrangements for Mr Al Masri’s return to the Gaza Strip and Mr Al Masri surrendered himself into immigration detention on 9 September 2002 and was subsequently removed from Australia.

The Full Court considered that, although Mr Al Masri had been removed from Australia prior to the hearing of the appeal, the outstanding practical issue as to costs and the important questions of principle raised by the appeal were sufficient to justify the appeal being heard.

The Full Court held, relying on the well-established common law principle that an intention on the part of the legislature to abrogate a fundamental right must be clearly manifested by unmistakable and unambiguous language, that the Act did not authorise detention pending removal in circumstances where there was no real likelihood or prospect of removal in the reasonably foreseeable future. This conclusion was supported by reference to the principle that a legislative provision should, as far as its language permits, be interpreted and applied in a manner consistent with established rules of international law and in a manner which accords with Australia’s treaty obligations. The Full Court referred to analogous cases in England and the United

154 Appendix 7 – Summary of Decisions of Interest

States, as indicative of the approach taken by courts in the common law tradition to the construction of statutes providing for administrative detention.

The Full Court also considered the submission that the power to detain must be read down by reference to constitutional limitations flowing from s 51(xix) and Chapter III of the Constitution. Although the Court considered that constitutional considerations pointed to a limitation on the power to detain, it was unnecessary to consider whether, without such a limitation, the provisions would be offensive to the Constitution, as the central issue in the appeal could be determined on the point of statutory construction.

The appeal was dismissed with costs.

(10) Administrative law – Whether alleged denial of procedural fairness by Tribunal a question of law – Whether evidence admissible to establish denial of procedural fairness Clements v Independent Indigenous Advisory Committee (27 June 2003, Gray ACJ, North and Gyles JJ)

This case concerned the conduct of the 2002 elections for the Tasmanian Regional Council of the Aboriginal and Torres Strait Islander Commission. Regulations enacted for the purpose of the elections established the Independent Indigenous Advisory Committee (“the Committee”), a body which could determine a person’s entitlement to vote and thus their eligibility to stand as a candidate for election. A person’s entitlement to vote depended upon whether they were an Aboriginal person or a Torres Strait Islander. By means of a process of self-nomination and community objection, it was the Committee’s task to consider objections to a person’s inclusion on the electoral roll.

The Committee upheld a number of objections to the inclusion of certain people on the electoral roll. One hundred and twenty-eight persons, including the applicant in this case, then appealed to the Administrative Appeals Tribunal (“the Tribunal”).

Although he applied to the Tribunal for review of the Committee’s decision, the applicant did not appear at the Tribunal hearing. The Tribunal was unaware that the applicant had not received written notice of the hearing and proceeded to deal with his case on the basis of documents submitted with his application for review, ultimately affirming the decision upholding the objection to the inclusion of the applicant’s name on the electoral roll.

The Court first discussed whether an alleged denial of procedural fairness by the Tribunal was a question of law for the purposes of section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), or whether the proceeding ought more properly be brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). Acting Chief Justice Gray and Justice North concluded that, in light of the authorities, a denial of procedural fairness raised a question of law. Justice Gyles on the other hand, considered that questions of natural justice more sensibly fell within the purview of the ADJR Act than the special and limited provisions of section 44 of the AAT Act. This view was, his Honour said, reinforced by the constitutional backdrop against which the legislation is to be viewed.

155 Federal Court of Australia - Annual Report 2002 - 2003

It was also necessary for the Court to decide whether to accept into evidence an affidavit which the applicant alleged would establish the denial of procedural fairness. This required consideration of whether the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) allowed the Court to admit evidence which was not before the Tribunal where the right to appeal from a decision of the Tribunal is limited to questions of law. The majority held that, as an appeal from a decision of the Tribunal is an exercise of the Court’s original and not appellate jurisdiction (pursuant to section 19 of the Federal Court Act), evidence could be admitted. Justice Gyles noted that there was conflicting authority on this point.

The majority held that the absence of the applicant from the Tribunal’s hearing did constitute a denial of procedural fairness, following authorities that hold that it is not necessary that a decision-maker be aware of the reason for an applicant’s absence in order to constitute a denial of procedural fairness: unintentional conduct or negligence is sufficient.

The majority applied the principles identified by the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj to hold that this denial of procedural fairness constituted a jurisdictional error on the part of the Tribunal. But this reference to Bhardwaj then raised a question as to whether the Court had jurisdiction to deal with the case at all – that is, was the AAT Act intended to cover decisions tainted by jurisdictional error which were thus totally lacking in legal effect. The majority found that it did, noting that previous Full Courts have held that a decision referred to in section 25 of the AAT Act includes a decision made in purported exercise of powers conferred by the relevant statute.

The majority held that the applicant was entitled to have the Tribunal’s decision set aside as he had been deprived of a chance of a successful outcome. However, the Court declined to remit the matter to the Tribunal to be heard and decided again, in view of the fact that there was no longer any decision-making function for the Tribunal to perform in relation to the roll, the elections for which it was brought into existence having been completed.

(11) Income tax – Whether an elite athlete was required to pay income tax on prize monies, grants, sponsorship and attendance fees Stone v Commissioner of Taxation (27 June 2003, Justices Heerey, Emmett and Hely)

The appellant, Ms Stone, was one of the world’s leading javelin throwers. She argued that prize money for international and local sporting events, a medal scheme, monies for involvement with the Academy of Sport, monies for appearances, and monies for scholarships were not assessable income for the purposes of the Income Tax Assessment Act 1997 (Cth). In the relevant tax year Ms Stone had claimed that her only assessable income was her salary as a full time senior constable in the Queensland Police Force.

The primary Judge had held that Ms Stone was carrying on the business of a professional athlete and therefore all receipts incidental to that business were income according to ordinary concepts. Ms Stone appealed to the Full Federal Court and the appeal was allowed in part.

156 Appendix 7 – Summary of Decisions of Interest

The Full Court held that appearance monies were in the same category as sponsorship payments, that is, a reward for services, and therefore assessable as income.

As for prize monies, however, the evidence of Ms Stone, accepted by the primary Judge, was that her selection of competitions was not based on the availability or otherwise of prize money. The Full Court concluded that the fact that an athlete engages in training and competition outside working hours (such as Ms Stone’s full time position as a police officer) is a practical indication that her or his purpose is likely to be the enjoyment of competition, the excitement of winning and the honour and glory that goes with it, rather than the carrying on of a business. In this case, as Ms Stone was not carrying on the business of a professional athlete, her prize money was not assessable income.

(12) Trade Practices – Whether Safeway had taken advantage of its power in the wholesale bread market for the purpose of damaging competitors in the retail market or of preventing each of the bread manufacturers engaging in competitive conduct in contravention of the Trade Practices Act 1974 (Cth) Australian Competition & Consumer Commission v Australian Safeway Stores Pty Limited (30 June 2003, Justices Heerey, Sackville and Emmett)

The Full Court of the Federal Court heard an appeal from a 2001 decision concerning allegations by the ACCC that Safeway Store Pry Limited (‘Safeways’) had contravened sections 45, 46, 47 and 48 of the Trade Practices Act 1974 (Cth) (“TPA”). The trial had run for ninety days.

Safeway operated 130 stores throughout Victoria. The case involved ten incidents. In nine of those incidents an independent store competing with a Safeway supermarket had been selling bread at a discounted price. Safeway then approached the baker who had supplied the bread to the retailer and requested a similar discount on the cost of that baker’s supplies of bread to Safeway . When this was refused, Safeway stopped purchasing virtually all that baker’s bread products (and not just bread comparable to that which the independent had been discounting). The remaining incident concerned an allegation that Safeway and Tip Top had entered into an arrangement to fix the price of bread sold by Tip Top at a retail outlet at the Preston Market.

The primary Judge found that in two of the nine incidents, Safeway’s purpose was to punish the bakers concerned and to deter them from continuing to sell bread to the independent retailer at a discounted price. However, while Safeway had a substantial degree of power in the Victorian wholesale bread market, His Honour held that it had not taken advantage of its power for a proscribed purpose (namely, deterring the bakers concerned from engaging in competitive conduct) because there was no necessary connection between Safeway’s market power and the conduct in which it had engaged. The primary Judge accordingly dismissed the case of the ACCC.

The Full Court by a majority (Justices Heerey and Sackville, Justice Emmett dissenting) upheld the primary Judge’s finding that Safeway had a substantial degree of power in the Victorian wholesale bread market. The majority also found that in four of the nine incidents Safeway had taken advantage of that power for the purpose

157 Federal Court of Australia - Annual Report 2002 - 2003 of deterring the bakers and the independent stores from engaging in competitive conduct.

As to the allegation of price fixing, the Full Court unanimously upheld the appeal of the ACCC and found that Safeway and Tip Top had contravened the TPA.

The Full Court remitted the case to the primary Judge for the fixing of penalties and dealing with the costs of the trial.

158 Appendix 8 – Judge’s participation in legal reform activities and international committees and conferences in 2002-03

APPENDIX 8

JUDGES’ PARTICIPATION IN LEGAL REFORM ACTIVITIES AND INTERNATIONAL COMMITTEES AND CONFERENCES IN 2002-03

The Chief Justice met the Chief Judge of Malaya, the Rt Hon Tan Sri Dato’ Ahmad Fairuz bin Dato’ Sheik Abdul Halim and the Hon Dato’ James Foong Cheng Yuen, High Court Judge, Kuala Lumpar, and their Project Team in Sydney on 14 August 2002 to discuss the architecture of courthouses.

In August 2002, the Chief Justice gave a talk about the Federal Court, and a virtual tour of the Court’s Melbourne courthouse, to members of the Federal Bar Association in Jacksonville, Florida, US. The talk and virtual tour were conducted by video-link from the Chief Justice’s chambers in Melbourne to a federal courthouse in Jacksonville. The talk was followed by discussion and a question and answer session with the Chief Justice.

The Chief Justice opened the 29th Annual Conference of the Maritime Law Association of Australia and New Zealand on 3 October 2002. The Hon Sir David Steel, the Admiralty Judge of England and Wales, was the guest of honour at the Conference and he also visited the Federal Court during his time in Melbourne.

Later in October the Chief Justice gave the keynote address, Collegiality and the Administration of Courts, at the National Judicial Orientation Program in Sydney. On the following day, the Chief Justice attended the AIJA Technology for Justice Conference 2002, where he gave a presentation: Remote Courts; taking courtrooms to the bush, outlining the Federal Court’s innovations in remote court technology in native title cases.

In November, the Chief Justice attended, as a guest on the bench, a ceremonial sitting of the High Court of New Zealand in Auckland at which an oar mace of admiralty was presented in memory of the late Justice Bradley Giles, a distinguished admiralty judge of the High Court of New Zealand. At the invitation of the Chief Justice of New Zealand, the Chief Justice gave an address from the bench.

The Chief Justice was closely involved in the organisation of the 5th Worldwide Common Law Judiciary Conference which was held at the Federal Court in Sydney between 7 and 11 April 2003. The Conference was hosted jointly by the High Court of Australia, the Federal Court of Australia and the Supreme Court of New South Wales. Senior members of the judiciary from 10 common law countries attended the Conference. They included the Lord Chief Justice of England and Wales, the Chief Justice of New Zealand, the Chief Justice of Ireland, the Lord Justice Clerk of Scotland, the Chief Justice of the Federal Court of Canada and the Chief Justice of Nova Scotia. The Conference was also attended by the Chief Justice of Australia and the Chief Justices of many of the States or their representatives.

The Chief Justice attended sessions of the 13th Commonwealth Law Conference held in Melbourne between 15 and 17 April 2003. He was a panellist for the session

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The Commonwealth – Women and the Law, and was the rapporteur for the session Old and New Commonwealth Final Appellate Courts and their Perspectives on the Common Law. As part of the Conference’s ancillary program, the Chief Justice hosted a tour of the Federal Court’s Melbourne courthouse and gave a presentation about the architecture of the building jointly with the building’s principal design architect, Mr Paul Katsieris of Hassells.

The Chief Justice attended the 15th Pacific Judicial Conference held in Madang, Papua New Guinea, between 23 and 27 June 2003, and was the commentator for the session, The Importance of Transparency in Judicial Decision-making, Administration and Conduct. The Federal Court has been closely associated with the Pacific Judicial Conference for many years, and hosted the 12th Conference in Sydney in April 1997, jointly with the High Court of Australia.

On 4 June 2003, the Chief Justice had a meeting with Professor Dr Yusril Ihza Mahendra, the Indonesian Minister of Justice and Human Rights.

During the year, the Chief Justice and other members of the Court supported the Sovereignty series of lectures, conducted by the Law School of the University of Melbourne. The lecturers visited the Court and met with the judges and the Chief Justice was the commentator for the lecture given on 19 March 2003 by the Rt Hon Dame Sian Elias, Chief Justice of New Zealand, on the topic of Parliamentary Sovereignty.

Justice Beaumont is a member of the steering committee of the Pacific Judicial Education Program, representing Australia and New Zealand, based at the University of the South Pacific Suva, Fiji. Justice Beaumont is also a member of the American Law Institute Advisory Committee on its Transnational Civil Procedural Law Project. Justice Beaumont also gave two papers at the South Pacific Judiciary Conference on Written and Oral Procedures – the Common Law Experience and Co-operation between Judiciaries in Transnational Civil and Commercial Matters. Justice Beaumont was involved in the organisation of the Philippine Judicial Exchange Programme in October 2002.

Justice Wilcox attended the 13th Commonwealth Law Conference held in Melbourne between 15 and 17 April 2003. His Honour was the rapporteur for the session on Industrial Law and was part of the panel for the session on Multiple Litigants.

Justice Ryan delivered a paper on The Application in Australia of ILO Conventions, to the Europe Asia Legal Conference in Como, Italy. His Honour also attended the 29th Annual Conference of the Maritime Law Association of Australia and New Zealand in Melbourne and presented a paper entitled Time and Cost Implications of the Arrest of Vessels.

Justice French continued to serve as President of the Australian Association of Constitutional Law and as a member of the Western Australian Genetics Council. His Honour presented the following papers and lectures: Referral of State Powers, AACL members in Brisbane on 28 August 2002; Western Australia v Ward – Devils and Angels in the Detail, Native Title Conference, Geraldton on 3 September 2002; Lecture to Students and Staff Seminar on Privative Clauses – Flinders University 6-8

160 Appendix 8 – Judge’s participation in legal reform activities and international committees and conferences in 2002-03

November 2002; Ethics at the Beginning and Ending of Life, Supreme and Federal Court Judges Conference, Adelaide on 21 January 2003; The Federal Court and the State Courts on Constitutional Law, The 2002 Term, High Court Centenary Conference, Gilbert & Tobin Centre for Public Law, Sydney on 21 February 2003; Referral of State Powers, Lecture to Juris Doctor Students, Melbourne University on 14 May 2003; Federal Court Jurisdiction, Lecture to Secondary School Students, Federal Court, Perth on 19 May 2003; The Equitable Geist in the Machinery of Administrative Justice, paper to New South Wales Chapter of Australian Institute of Administrative Law, Sydney on 22 May 2003. Justice French attended the 13th Commonwealth Law Conference held in Melbourne between 15 and 17 April 2003. His Honour was the rapporteur for the session Sparks Across The Gap - Recognition of Indigenous Customary Title & Laws.

Justice French also acted as Judge on two occasions for members of the Western Australian Jessop International Law Moot Team. He co-edited a book, French, Lindell and Saunders, Reflections on the Australian Constitution, published by Federation Press and organised a seminar on the Western Australian State Constitution held in Perth on 22 March 2003.

Justice Hill is the Challis Lecturer in Taxation (part-time) at the Faculty of Law, University of Sydney (LLM degree) and Patron of the Tax Law Teachers Association. His Honour presented the following papers and lectures: Challenging a Tax Assessment – an Australian Perspective, ATAX Symposium on Tax Reform in China in Beijing, September 2002; GST – An Income Tax to be interpreted by reference to Income Tax principles or just another consumption tax, at the Tax Institute of Australia – 5th Australian GST Symposium, Gold Coast, Queensland, October 2002; Reminiscence – Law and Teaching University of Sydney (Dinner held by the Faculty of Law in honour of Justice Hill’s 35th year of teaching and the award of Honorary Doctorate of Laws) 26 November 2002; The Interface between Tax Law and Accounting Concepts and Practice as seen by the Courts. Australasian Tax Teachers’ Association conference, University of Wollongong January 2003 (article to be published late 2003); Part IVA and the Tax Advisor – 17th National Convention of Taxation Institute of Australia Adelaide March 2003; Some Thoughts on the Principles Applicable to the Interpretation of GST, 15th Annual GST and Indirect Tax Weekend. Noosa, Queensland, April 2003; Role of the Courts in Interpreting Double Tax Agreements and Case Management – International Tax Cases presented at the Judicial Training Workshop in Thailand, June 2003, for ATAX and as part of the AusAID program - Thailand Australia Capacity Building Facility. His Honour also attended the Competition Law Conference held in Sydney in May 2003.

Justice Hill is also the Chair of the Faculty Advisory Committee – Faculty of Law, University of Wollongong (appointed May 2003); is on the Editorial Board of e- Journal of Tax Research (ATAX UNSW); and is President of the Sydney International Fiscal Association 2003 Congress. His Honour has published GST – an Income Tax to be Interpreted by Reference to Income Tax Principles or Just Another Consumption Tax in the Australian Tax Forum, Vol 17 No. 3 2002.

Justice Heerey presented a paper entitled Aesthetics, Culture and the Whole Damn Thing to the Annual Conference of the Law and Literature Association of Australia at Melbourne University in November 1992. His Honour gave a lecture to post-graduate

161 Federal Court of Australia - Annual Report 2002 - 2003 students at Melbourne University on Damages under the Trade Practices Act and to students at the University of Tasmania on Abuse of Market Power. A paper by his Honour entitled The Directly Elected Irish Presidency and its Relevance for Australia was published in the Constitutional Law and Policy Review in December 2002.

Justice Cooper is a member of the Board of Governors of the International Maritime Organisation World Maritime University, Sweden. His Honour is also a member of the Maritime Law Association of Australia and New Zealand.

Justice Branson attended the Australian Institute for Judicial Administration (AIJA) Annual Conference in Brisbane in July 2002; the Insolvency and Trustee Service Australia 4th National Bankruptcy Congress in September, chaired a panel session and gave the dinner speech; the ACCC Conference – the International Marketing Supervision Network Meeting in September 2002 and presented a paper entitled Cross-border Consumer Protection in the Age of Electronic Commerce; and the Cranlana Justice and Society program in Melbourne in December 2002. Her Honour was invited by the Department of Foreign Affairs and Trade to join the Human Rights Delegation to Iran in December 2002. Justice Branson gave the professional development address to the Law Society of SA on The Significance of ss 135 and 136 of the Evidence Act 1995 (Cth) in Civil Proceedings in February 2003. Her Honour is a Board Member of the International Development Law Organisation and attended the Annual Board meeting in Rome in March 2003. Her Honour also attended the Competition Law Conference in May 2003 and chaired a session on Foundation of Principled Approach to the Regulation of Markets Rationality and the Assimilation of Economics by the Law; and in June 2003 attended the Flinders University Feminists Legal Academics Workshop and presented a paper entitled Feminism and the Legal Profession – Academics, Practitioners and the Judiciary.

Justice Lindgren chairs the Council of Chief Justices’ Harmonised Corporations Rules Monitoring Committee and its Subpoena Rules Harmonisation Committee. His Honour delivered a paper to the Anglo-Australasian Lawyers Society in London on Copyright and Trade Mark Law – Recent Developments in Australia, including a review of the jurisdiction and activity of the Copyright Tribunal. Justice Lindgren also addressed members of the Administrative Appeals Tribunal in Sydney on Concurrent Expert Testimony and the College of Investigative Remedial Consulting Engineers of Australia on The New Rules for Professional Witnesses – 3 years on. His Honour also lectured on Presenting Legal Argument in the Bar Practice Course of the NSW Bar Association. In February 2003 Justice Lindgren conducted two, two- day judicial workshops for Indonesian Judges, one in Denpasar, Bali and the other in Pekan Baru, Sumatra, as part of the “Indonesian Judicial Training Program”, a project of the Court supported by the Australian Government through AusAID.

Justice Tamberlin took part in various conferences, including the 75th Anniversary Congress organised by the Union Internationale des Avocats and the Commonwealth Law Conference where his Honour spoke at the information session in relation to the use of eCourt in native title matters. Justice Tamberlin was also invited by the Law School at Macquarie University to present a guest lecture to students in the Intellectual Property law course. The Law School also asked Justice Tamberlin to preside over the Senior Law Moot, which took place at the Federal Court in Sydney in May 2003. Justice Tamberlin provided a number of demonstrations of the Court’s

162 Appendix 8 – Judge’s participation in legal reform activities and international committees and conferences in 2002-03 technology systems, including eCourt and voice recognition programs and also presented lectures covering various areas of the law, including Intellectual Property and the structure of the Australian Judiciary, to visiting judges from Indonesia and Vietnam.

Justice Sackville delivered the keynote address From Access to Justice to Managing Justice – The Transformation of the Judicial Role at the Annual Conference of the Australian Institute of Judicial Administration in July 2002. His Honour delivered a paper entitled Courts in Transition: An Australian View to the New Zealand Court of Appeal/High Court Judges’ and Masters’ Conference at Mt Ruapehu, New Zealand in March 2003. In November 2002 his Honour made a presentation on Indigenous Peoples of Australia and the Constitution to the New South Wales State Schools Constitutional Convention. Justice Sackville is the Deputy Chair of the Judicial Conference of Australia.

Justice Kiefel is Chair of the Advisory Board of the Key Centre for Ethics Law. Her Honour spoke to professional staff of Mallesons in Brisbane on Ethics and the Practitioner; and delivered a paper on Judicial Review at the Centenary Conference of the Bar Association of Queensland.

Justice RD Nicholson is the Chair of the International Advisory Board of the International Judicial Academy and is the President of the International Commission of Jurists, Western Australian Chapter. Justice RD Nicholson is a member of both the Board and Council of the AIJA and Chair of both the Courts and Public Committee and the Projects and Research Committees of the AIJA. His Honour is also Secretary of the LAWASIA Judicial Section. He is Deputy Convenor of the Trustees of the Francis Burt Education Centre.

In July 2002 Justice Nicholson contributed closing remarks to the Australian Institute of Administrative Law, National Forum, Fremantle, Perth. His Honour contributed papers to The Australian Law and Literature Association Annual Conference in Melbourne, November 2002 entitled Law and language: The Case of Native Title; and to the Fifth Worldwide Common Law Judiciary Conference, Sydney, April 2003 entitled Australian Experience with Self-Represented Litigants. He also acted as Rapporteur in a session on Self-Represented Litigants at the 13th Commonwealth Law Conference, Melbourne, April 2003. He delivered a speech to the University of Notre Dame Law School students on Self-Represented Litigants in the Court System, April 2003 and presided in the final of the Murdoch Law School Trial Advocacy Competition, Perth, May 2003.

Justice Marshall conducted a workshop in Dili, East Timor, for judges from the East Timor District Court in October 2002. His Honour presented an address to the Mordiallic Rotary Club on The Judiciary in East Timor, Re-building a Nation. With the assistance and support of the Chief Justice and the Registrar, Justice Marshall also organised the attendance of two East Timorese District Court Judges at the Judicial Conference Colloquium in Darwin in May/June 2003 and a program of visits to courts in Darwin.

Justice North presented a paper on Courts and Immigration Detention: The Australian Experience at the International Association of Refugee Law Judges conference in

163 Federal Court of Australia - Annual Report 2002 - 2003

Wellington, New Zealand in October 2002. His Honour delivered the annual Sir Anthony Mason honorary lecture on The Courts facing new challenges at Melbourne University Law School in September 2002. In April 2003 his Honour delivered a lecture to post graduate students at Melbourne University on On Country Hearings and gave a lecture entitled Practical legal issues arising in ‘on-country’ hearings – a case study at the University of New England as part of the Kirby Seminar Series, May 2003. Justice North judged the public demonstration moot for the Melbourne University law school team participating in the Jessop Moot in February 2003 and judged the semi-final of the mooting competition conducted as part of the Commonwealth Law Conference held in Melbourne in April 2003. In May 2003 his Honour conducted the first school moot held in Melbourne by the Federal Court of Australia involving students of Presentation College, Windsor.

Both Justice North and Justice Finkelstein served on the papers committee of the Commonwealth Law Conference held in Melbourne in April 2003 and coordinated the participation of a number of judges of the Court to act as rapporteurs.

Justice Mansfield presented a paper on Affidavits and Witness Statements to the Law Society of South Australia on 25 July 2002, the SA Bar Association Bar Readers Course on 16 September 2002 and the Northern Territory Law Society on 26 February 2003. Justice Mansfield attended two conferences organised by the Law Council of Australia, Business Law Section; a Corporations Workshop from 19-21 July 2002 in Queensland and a Trade Practices Workshop on 23-25 August 2002 in the Barossa Valley.

Justice Emmett is the Challis Lecturer in Roman Law at the University of Sydney. His Honour attended the Intellectual Property Society of Australia & New Zealand, Inc, 16th Annual Conference, 'Copyright Tribunal Disputes' on 8 September 2002 and the Australian Institute of Administrative Law (NSW Chapter) Conference on 22 May 2003 at which he delivered a paper entitled Privative Clauses: A Federal Perspective. His Honour is a member of the Co-ordination Committee for the Einstein Institute for Science, Health & the Courts (EINSHAC) 'Genetics in the Courtroom' Conference in Sydney in September 2003 and was also a member of the Advisory Committee to the Australian Law Reform Commission Joint Inquiry into the Protection of Human Genetic Information. Justice Emmett was involved in the organisation of the Philippine Judicial Exchange Program in October 2002 and continues to participate in the co-ordination of the 'Courtwatch' program in which students from the University of Sydney and the University of New South Wales are invited to observe Court proceedings for a day. Justice Emmett is Consultant Editor and Contributor to Butterworths Australian Legal Dictionary and Consultant Editor to Butterworths Trusts Law in Australia.

Justice Weinberg was a member of the Australian Law Reform Commission’s Advisory Committee on the review of the Judiciary Act and is a member of the Division constituted under the Australian Law Reform Commission Act 1996 (Cth) for the purposes of the reference on Civil and Administrative Penalties in Australian Federal Regulation. His Honour attended the Criminal Lawyers Association of Australia and New Zealand, Eighth International Criminal Law Congress in Melbourne in October 2002 where he presented a paper entitled Guantanamo Bay, Detention, and Trial by Military Commission. His Honour presented a paper entitled Case

164 Appendix 8 – Judge’s participation in legal reform activities and international committees and conferences in 2002-03

Management and Alternative Dispute Resolution in The Federal Court of Australia at a Sino-Australian Seminar conducted under the auspices of Victoria University. His Honour also presented a paper entitled Dispute Resolution and the Rule of Law in Beijing, 20-22 November 2002; participated in a Twilight Seminar, held in the Federal Court in Melbourne in April 2003, in conjunction with Law School, University of Melbourne on the Implementation of the Rome Statute for an International Criminal Court in Australian Law; and conducted a course, jointly with Professor Michele Papa from the University of Florence, entitled “Current Issues in Comparative and International Criminal Law” at the Faculty of Law, Monash University campus in Prato, near Florence from 16 June to 7 July 2003. Justice Weinberg has been Chairman of the Leo Cussen Institute of Victoria since October 2000 and a Board Member of Monash University Faculty of Law since 1998.

Justice Dowsett is a member of the Council of the National Judicial College of Australia.

Justice Kenny was a participant in the Asia-Pacific Judicial Educators Forum held in Manila, Philippines in February 2003. Her Honour gave a speech The High Court on Constitutional Law: The 2002 Term given at the 2003 Constitutional Law Conference, Sydney NSW in February 2003. Justice Kenny was a Judge of the Deacons Senior Mooting Competition Grand Final held at Melbourne University Law School in September 2002. Her Honour’s review of Kim Rubenstein’s Australian Citizenship Law in Context (Lawbook Co, Sydney 2002) was published in the Oxford University Commonwealth Law Journal.

Justice Kenny is a Board Member of the Centre for International and Public Law, Australian National University; a Board Member of Monash University Law Faculty; an Advisory Board Member of the Federal Law Review; on the Scholarship Committee of the Menzies Foundation; Patron of the Australia-Indonesia Legal Development Foundation Inc; and in October 2002 was the Melbourne Delegate Host for the Australian-Philippine Judicial Cooperation Program.

Justice Gyles is a member of the International Court of Arbitration for Sport and Code of Conduct Commissioner for the Australian Cricket Board. His Honour was a rapporteur for the Commonwealth Law Conference held in Melbourne in April 2003.

Justice Stone is Adjunct Professor of Law at the University of New South Wales, lecturing to undergraduate and graduate students in equity and in land transaction courses. Her Honour participated in the celebrations for the 10th Anniversary of the Flinders University Law School, Adelaide, sitting with Hill and Branson JJ as a Full Court of the Federal Court in the moot court room of the Law School. Justice Stone is a member of the Advisory Board for the Juris Doctor Degree at Melbourne University and was the guest speaker at the JD Award Ceremony on 26 June 2003. During the year Justice Stone attended conferences and seminars on various legal topics including Intellectual Property, Corporations Law, Constitutional Law and Competition Law. She attended the Annual Public Law Weekend at the Australian National University in November 2002 and lectured on Refugee Law at Sydney University in December 2002. Justice Stone is a member of the Judicial Conference of Australia, the Australian Association of Women Judges and the Australian Institute of Judicial Administration.

165 Federal Court of Australia - Annual Report 2002 - 2003

Justice Allsop gave a lecture entitled The Control of the Executive by the Courts at the Annual Public Law Weekend organised by the Centre for International and Public Law at the Australian National University. His Honour lectured at the University of Sydney post-graduate class in Company Law as an adjunct member of staff and also spoke to the Australian Marine Pilots Association. Justice Allsop gave a lecture to the New South Wales Bar Association on Federal Jurisdiction and the Jurisdiction of the Federal Court and presided in mock trials run by the NSW Bar Association for its Practice Course. Justice Allsop attended conferences conducted by: the Maritime Law Association of Australia and New Zealand; the Australian Association of Constitutional Law; the Law Council of Australia and Federal Court Seminar on Corporations Law at which he chaired a session. His Honour attended the Law Council of Australia workshop on Trade Practices; and the Competition Law Conference at which he chaired a session.

Justice Selway is an Adjunct Professor of Law at the University of Adelaide. He is Secretary of the Australian Association of Constitutional Law. Since his appointment his Honour has delivered a paper on Constitutional Interpretation to the Conference of Federal and Supreme Court Judges in January, 2003. He also delivered a paper on Queensland’s Contribution to the High Court at the Supreme Court of Queensland in March, 2003. His Honour gave a paper on Public Private Partnerships to the Strategic Public Sector Leaders’ Summit in Adelaide in March, 2003; a paper on The Ethical Duties of In-House Government Lawyers at the meeting of the Commonwealth Association of Public Sector Lawyers in Melbourne on 13 April, 2003; and a paper on The Problems of the Insurance Industry - an Uninformed Perspective to a meeting of the SA Division of the Insurance Lawyers Association in Adelaide on 11 June, 2003. Justice Selway gave a presentation on the jurisdiction and practice of the Federal Court to the Legal Education Teacher’s Association of South Australia in June 2003 and gave lectures on Developments in the English Constitution and on Separation of Powers to the Adelaide Law School in March and May 2003.

Justice Bennett has been the Pro-Chancellor of the Australian National University since November 1998 and is a member of the Finance Committee, the Honorary Degrees Committee, the Conditions of Appointment of the Vice-Chancellor and Deputy Vice-Chancellor Committee and the Committee for the Australian National University Endowment for Excellence Board of Directors. Her Honour is a member of Chief Executive Women (past President); an advisory committee member of the Australian Law Reform Commission; and a member of the Medico-Legal Society of New South Wales. Her Honour is also a council member of the Australian Academy of Forensic Science.

166 Appendix 9 – Equal Employment Opportunity Statistics

APPENDIX 9

EQUAL EMPLOYMENT OPPORTUNITY STATISTICS

Representation of EEO Groups within occupational groups

Occupational Total Women NESB1 NESB2 ATSI PWD Group staff SES 10 2 1 1 FCS and related 321 202 24 8 3 5 Professional 37 23 1 1 TOTAL 368 227 26 9 3 6

Representation of EEO Groups within salary levels

Total Salary Women NESB1 NESB2 ATSI PWD staff $28829 - 31860 1 FCS1 $32626 - 36178 63 35 7 4 3 FCS2 $37160 - 40107 61 40 6 3 1 FCS3 $41418 - 44969 9 5 FCS4 $46195 - 48985 141 108 7 1 2 1 FCS5 $49893 - 57313 21 6 2 1 FCS6 $68860 - 77674 31 15 4 1 FCM1/FCL1 $73620 – 101 920 31 16 1 FCM2/FCL2 SES 10 2 1 1

TOTAL 368 227 28 9 3 6

Note: EEO target groups are not mutually exclusive. Any individual officer may be included in more than one group. Salary groupings are based on maximum salary for a classification. Key: NESB1 - people of non-English speaking background, first generation NESB2 - people of non-English speaking background, second generation ATSI - Aboriginals and Torres Strait Islanders PWD - People with disabilities FCS - Federal Court Staff FCM - Federal Court Manager FCL - Federal Court Legal

167 Federal Court of Australia - Annual Report 2002 - 2003

APPENDIX 10

STATEMENT UNDER SECTION 8 OF THE FREEDOM OF INFORMATION ACT 1982

Information on the particulars of the establishment, organisation, functions and powers of the Court is contained throughout this report. Information on the Court’s arrangements for consultation with users of the Court about the Court’s operations is also included in Chapter 3 of the report. The following lists the categories of documents maintained by the Court, the Court’s facilities for public access and the Court’s FOI procedures and relevant contacts for inquiries.

Categories of documents

The Federal Court Registries maintain the following categories of documents:

• documents relating to matters heard by, or applications or appeals lodged with, the Court including applications, notices of appeal, affidavits, pleadings, transcripts and copies of judgments; • registers and indexes in bound volumes of matters coming to the Court (documents dealing with matters coming to the Court are also generated by computer); • statistical information; • documents concerning staff matters; • documents concerning the administrative and financial aspects of the Court's operations; • internal working documents and correspondence; and • registry manuals.

The District Registries also maintain a computer database containing details of matters commenced in the Court since 1 January 1984.

The following categories of documents are open to public access according to an enactment (other than the Freedom of Information Act 1982) where the access is subject to a fee or other charge:

• documents filed in a proceeding or purported proceeding (available upon application, subject to the Rules of Court and upon payment of the fees set out in the Federal Court Regulations).

The following categories of documents are available for purchase by the public in accordance with arrangements referred to below:

• transcripts of proceedings (inquiries may be made at the relevant District Registry to ascertain the service provider for the relevant State or Territory);

168 Appendix 10 – Statement under Section 8 of the Freedom of Information Act

• copies of documents filed in the Registry (available upon application, subject to the Rules of Court, and upon payment of the fees set out in the Federal Court of Australia Regulations); and

• reasons for judgment (available upon application and payment of the fees set out in the Federal Court of Australia Regulations).

The following categories of documents are open to public access according to an enactment (other than the Freedom of Information Act) free of charge on request:

• Registers of proceedings in the Court.

The following documents are available free of charge upon request:

• procedural guides to: commencing an action in the Federal Court of Australia (for litigants in person); appearing in Court in relation to a creditor's petition (for unrepresented debtors); completing certain forms prescribed by the Rules of Court; filing documents in the Court by facsimile transmission.

• a list of Full Court sittings (published yearly); • Court lists (published daily); • various practice notes made by the Chief Justice; and • Video-conferencing Protocol.

Facilities for access

Facilities to examine documents and to obtain copies are available at the Court's registries as initial contact points. Registers open to public inspection are available at all initial contact points. Transcript is available from the relevant reporting service provider.

FOI procedures and initial contact points

FOI contact officers will assist applicants to identify the particular documents they seek. The only officer authorised to deny access to documents is the Registrar of the Court.

The availability of some documents under the Freedom of Information Act will be affected by section 5 of that Act, which states that the Act does not apply to any request for access to a document of the Court unless the document relates to matters of an administrative nature.

Inquiries concerning access to documents or other matters relating to freedom of information should be directed to the District Registrar of the relevant District Registry or, in the case of the Principal Registry, to the Registrar. The addresses are listed on page (iv) at the front of this report.

169 Federal Court of Australia - Annual Report 2002 - 2003

INDEX

Practice and procedure ...... 136 A Australian Industrial Court ...... 3 Australian Industrial Relations Commission Access...... 44 President...... 6 Community relations ...... 55 Disability, race and sex discrimination.... 49

Gender issues...... 49 B Interpreters...... 48 Bankruptcy Judgments ...... 54 Jurisdiction...... 22 Remission or waiver of court fees ...... 48 Remote hearings ...... 53 C To Court buildings...... 80 C User groups...... 55 Caseflow Management ...... 26 Access to Justice Disposition of matters other than native title Reform activities...... 56 ...... 26 Administration of the Court Certified Agreement ...... 76 Access to Court buildings...... 80 Chief Justice . 4, 7, 8, 9, 15, 23, 25, 36, 44, 49, Advertising and marketing services...... 68 54, 55, 56, 57, 65, 74, 141, 143, 144, 150, Commonwealth Disability Strategy...... 79 151, 152, 158, 159, 162 Consultancy Services...... 68 Committees Corporate Services...... 66 Judges...... 65 Environmental management ...... 81 Rules Revision ...... 25 Financial management...... 66 Community relations ...... 55 Human resources ...... 70 Activities ...... 55 Library and information services...... 78 Complaints Occupational health and safety...... 76 About the Australian Competition Tribunal Performance management ...... 71 ...... 137 Performance Pay...... 72 About the Copyright Tribunal...... 138 Property management ...... 81 About the Court's processes ...... 56 Risk management and audit...... 67 About the Defence Force Discipline Techology services ...... 69 Tribunal...... 139 Training and development ...... 72 About the Federal Police Disciplinary Workplace bargaining...... 70 Tribunal...... 140 Workplace diversity...... 77 Copyright Tribunal Administrative Appeals Tribunal Activities ...... 138 Jurisdiction of Court to review ...... 21 Functions and powers...... 137 Presidential Member.....4, 5, 6, 7, 9, 10, 161 Membership and staff...... 138 Review of refusal to waive fees...... 49 Practice and procedure ...... 137 Administrative Decisions (Judicial President...... 5 Review) Act ...... 21, 22 Registry...... 10 Admiralty Corporations Act ...... 22 Jurisdiction...... 22 Workload statistics...... 132 Cross-vesting Monitoring Committee ... 56 Appeals From Supreme Courts...... 23

From the Administrative Appeals Tribunal D ...... 21 Decisions of interest ...... 28, 141 From the Federal Magistrates Court .... 3, 22 Administrative law - judicial review of Full Court sittings ...... 32 appointment of Chief Magistrate of Workload ...... 32 Northern Territory ...... 143 Australian Competition Tribunal...... 10 Administrative law - judicial review of a Activities...... 137 decision to grant a licence to construct a Functions and powers ...... 136 nuclear reactor...... 142 Membership and staff ...... 137

170 Index

Administrative law - whether alleged denial Amendments ...... 23 of procedural fairness by Tribunal a Federal Court of Australia Regulations 23, question of law...... 154 48, 167, 168 Constitutional law - Parliamentary election Federal Court of Bankruptcy ...... 3 ...... 141 Federal Court Rules ...... 9, 24, 38, 51 Constitutional law - validity, meaning and Federal Magistrates Court..3, 10, 16, 17, 22, effect of transactions of foreign 24, 25, 26, 27, 30, 31, 32, 33, 34, 35, 46, 65, sovereign states ...... 150 69 Income tax - whether an elite athlete was required to pay income tax on prize Federal Police Disciplinary Tribunal..... 10 money ...... 155 Activities ...... 140 Migration - mandatory detention of Functions and powers...... 139 unlawful non-citizen pending removal Membership and staff...... 139 ...... 152 Practice and procedure ...... 139 Native title - inconsistency between state Financial results...... 18 legislation and the Native Title Act .. 148 Freedom of Information Trade practices - domain names and Categories of documents ...... 167 cybersquatting...... 151 Freedom of Information Act...... 167 Trade practices - whether an advertising facilities for access ...... 168 agency could be liable for misleading or procedures ...... 168 deceptive representations ...... 145 Full Court Trade practices - wholesale bread market, sittings...... 32 competitive conduct...... 156 Defence Force Discipline Appeal Tribunal H ...... 5, 10, 43, 136, 138 Activities...... 139 Hearings Functions and powers ...... 138 Full Court...... 33 Membership and staff ...... 139 High Court of Australia .. 3, 17, 30, 32, 33, Practice and procedure...... 138 34, 35, 45, 59, 65, 141, 143, 155, 158, 159, 160, 162, 164, 165 E I eCourt ...13, 14, 39, 50, 51, 53, 56, 70, 161 Courtrooms and hearings...... 52 Individual Docket System eCourt Forum...... 50 Review ...... 15, 44 Electronic trials and appeals ...... 51 Industrial Relations Court of Australia 4, 5, Electronic Filing System ...... 51 9, 10 Equal employment opportunity Chief Justice...... 4 Statistics...... 166 Judge ...... 4, 5, 6 Information about the Court ...... 53 F Brochures ...... 54 Internet home page...... 53, 78 Family Court of Australia Media and televised judgments...... 54 Chief Justice ...... 5 Intellectual property...... 22 Federal Court of Australia International Work of the Court ...... 57 Establishment...... 3 Functions and Powers...... 3 J Judges ...... 4 J Jurisdiction...... 21 Judges Management of the Court ...... 65 Appointment...... 4 Management structure ...... 112 Appointments and retirements 2002-03 .....7 Objectives ...... 3 Commissions and appointments...... 4 Outcome and Output Structure ...... 3 Participation in legal reform activities and Registries ...... 9 international committees and Rules...... 9 conferences...... 158 Staff ...... 10 Removal ...... 4 Staff delegated powers...... 10 Retirement...... 4 Staff overview...... 71 Judges committees...... 65 Federal Court of Australia Act ..3, 4, 9, 10, 23, 24, 30, 42, 45, 65, 68, 117, 155,156

171 Federal Court of Australia - Annual Report 2002 - 2003

Judgments Practice and procedure Access to...... 54 Initiatives...... 15 Delivery ...... 27 Migration workload...... 45 electronic availibility ...... 54 Reforms in 2002-03...... 44 see Decisions of interest ...... 27 Practice Notes...... 24, 25 Jurisdiction ...... 3 Changes in 2002-03 ...... 23 R list of statutes...... 116 Refugee Review Tribunal17, 34, 35, 45, 153 L Jurisdiction of Court to review...... 21 Registrar Legal education and reform Appointment...... 9 Judges and Court involvement in...... 56 Registrars List ...... 113 M Registries ...... 9 Rules Revision Project...... 25 Management of the Court...... 65 Judges committees...... 65 Judges meetings...... 66 S Mediation Self -Represented Litigants Assisted Dispute Resolution ...... 42 Assistance...... 46 External mediations ...... 43 Management Plan...... 15 Settlement rates...... 42 Staff Overview...... 71 Migration Act ... 17, 21, 24, 34, 35, 118, 131, Supreme Court of Fiji...... 4, 5, 6, 8 153 Supreme Court of Norfolk Island ... 3, 4, 22 Migration matters ...... 17 Chief Justice...... 4 Appeals...... 35 Supreme Court of the ACT...... 4, 5, 6, 8, 9 Management of cases...... 35 Chief Justice...... 5 Workload ...... 34 Supreme Court of the Cocos (Keeling) Migration Review Tribunal Jurisdiction of Court to review ...... 21, 34 Islands...... 5 Supreme Court of Vanuatu...... 5 N T National Native Title Tribunal ..10, 22, 37, 40, 41, 124, 126, 135 Taxation...... 22 Native Title Technology ...... 69 Act ...... 22 Case management system...... 69 Coordinating Committee ...... 14, 36 eCourt...... 50 Court initiatives ...... 14 Electronic Filing System...... 51 Decisions of interest ...... 41 Electronic Trials and Appeals ...... 51 Early neutral evaluation...... 39 Video-conferencing...... 52 Jurisdiction...... 36 Time standards...... 18 Management of cases...... 36 delivery of judgments...... 18 Mediation...... 38 Delivery of judgments...... 28 National allocation protocol...... 37 disposal of matters...... 18 Regional case conferences...... 38 Disposal of matters other than native title 26 Time goal...... 37 Native title...... 37 User groups...... 37 Trade Practices Act...... 21 Workload ...... 39 Tribunals Management of cases ...... 43 O U Officers of the Court...... 10 Outcome and Output Statement...... 67 User groups...... 55

P V Pegasus Scholarship Trust...... 60 Video-conferecing ...... 52 Visitors to the Court ...... 60

172 Index

W Matters completed...... 30 Matters on hand...... 30 Workload Matters transferred or remitted...... 30 Appellate workload...... 17 Workload Statistics...... 120 Impact of Federal Magistrates Court ...... 25 Administrative Decisions (Judicial Review) Issues and developments...... 13 ...... 30 Management of cases by tribunals...... 43 Admiralty Act matters filed...... 132 Migration matters...... 17, 34 Appeals to the Full Court ...... 133 Native title matters...... 36, 39 Corporations law ...... 129 Trends...... 16 Full Court Appeals ...... 123 Work with international jurisdictions ...... 57 Full Court appeals - source...... 134 Workload in appellate jurisdiction ...... 32 Matters filed ...... 124 Age of pending appellate workload ...... 33 Matters finalised...... 125 Appeals completed...... 33 Migration Act matters filed...... 131 Appeals filed...... 33 Native title matters filed...... 135 Overview ...... 33 Summary ...... 121, 122 Workload in original jurisdiction ...... 29 Time span to complete ...... 127 Age of pending workload ...... 31 Time span to complete - benchmark ...... 128 Incoming work...... 29 Trade Practices matters filed...... 130

173