Malcolm Turnbull (Wentworth, Liberal Party, Parliamentary Secretary to the Prime Minister) Share this | Hansard source

I present the explanatory memorandum to the bill and I move:

That this bill be now read a second time.

This bill has two main purposes. Firstly, it gives effect to purported orders made contrary to paragraph 39(2)(d) of the Judiciary Act 1903 by non-judicial officers of state courts of summary jurisdiction, by providing that the rights and liabilities of all persons are the same as if each such order had been an order made by the court in the exercise of its federal jurisdiction. Secondly, it repeals paragraph 39(2)(d) and subsection 68(3) of the Judiciary Act.

The effect of paragraph 39(2)(d) is that registrars and other non-judicial officers of state courts of summary jurisdiction do not have jurisdiction to make certain orders in federal matters, such as default orders. A corresponding provision, subsection 68(3) of the Judiciary Act, provides for similar restrictions in relation to the exercise of federal jurisdiction in criminal cases.

In December 2005, the government was informed that registrars in the Victorian Magistrates Court had been purporting to exercise federal family law jurisdiction, contrary to the restrictions in paragraph 39(2)(d), by making consent orders in relation to family law matters. Consequently, all state and territory Attorneys-General were contacted to remind them of the restrictions in the Judiciary Act. The government also asked all state Attorneys-General to advise how widespread the practice was of non-judicial officers in state summary courts exercising federal jurisdiction in contravention of paragraph 39(2)(d).

While waiting for a response from state and territory Attorneys-General, amendments were introduced in the Family Law Amendment (Shared Parental Responsibility) Act 2006 to effectively validate the ineffective family law orders as a matter of urgency. This provided certainty for parties involved in proceedings in which ineffective family law orders had been made.

It subsequently became apparent that in some states orders have been made contrary to paragraph 39(2)(d) in relation to taxation and other federal law matters. Parties to proceedings involving ineffective orders have acted on the assumption that the orders were valid and could be relied upon. Consequently, this bill creates new statutory rights and liabilities for parties that may be exercised and enforced in the same manner as valid orders of the relevant court. These provisions will provide certainty for these parties and avoid unnecessary legal challenges.

In order to prevent the situation arising again, the bill repeals paragraph 39(2)(d) and subsection 68(3) of the Judiciary Act. This will allow, subject to the Constitution, state summary courts to be constituted in the same way for the purpose of exercising federal jurisdiction as they are able to be constituted for the purpose of exercising state jurisdiction. State summary courts will be able to determine which officers, including non-judicial officers, can exercise federal jurisdiction. This will place state summary courts in the same position as state district, county and supreme courts.

Traditionally, stipendiary magistrates and lay magistrates both exercised summary jurisdiction in state courts. Stipendiary magistrates were legally qualified full-time officers, while lay magistrates were not. There was concern then, as there still is, of course, that persons exercising the judicial power of the Commonwealth should be suitably qualified. Paragraph 39(2)(d) and subsection 68(3) were intended to address this concern. However, today state statutes generally require magistrates to be legally qualified and state courts of summary jurisdiction have evolved considerably in the past 100 years. I am confident that the states will ensure that both federal and state jurisdiction are exercised only by suitably qualified people.

Subject to the requirements of the Constitution, it is generally not desirable for the states to have to put in place different arrangements for the handling by state courts of matters in federal jurisdiction. This obviously reduces their flexibility to deal with what are no doubt busy workloads.

State registrars already make the same kinds of orders in state jurisdiction which the Judiciary Act currently prevents them from making in federal jurisdiction. These amendments will allow the states to determine which officers, including non-judicial officers such as registrars, can exercise federal jurisdiction. By doing so this bill contributes to achieving a more accessible, efficient and flexible civil justice system. I commend this bill.

See this speech in context