Trevor Evans (Brisbane, Liberal Party, Assistant Minister for Waste Reduction and Environmental Management) Share this | Hansard source

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

The government is committed to ensuring the ongoing improvement of Australia's federal courts and tribunals. It is with pleasure that I introduce the Courts and Tribunals Legislation Amendment (2021 Measures No.1) Bill 2021 (the bill), which primarily seeks to improve the administration of the federal courts and the Administrative Appeals Tribunal (AAT). The bill does not introduce fundamental changes to the way our legal system operates. Rather, it represents some incremental changes that will streamline and clarify existing processes in the federal courts and the AAT.

In particular, this bill amends the A New Tax System (Family Assistance) Administration Act 1999, the Administrative Appeals Tribunal Act 1975, the Admiralty Act 1988, the Child Support (Registration and Collection) Act 1989, the Commonwealth Electoral Act 1962, the Family Law Act 1975, the Federal Circuit Court Act 1999, the Federal Circuit and Family Court Act 2021, the Federal Court of Australia Act 1976, the Foreign States Immunities Act 1985, the Judiciary Act 1903, the Military Rehabilitation and Compensation Act 2004, the Paid Parental Leave Act 2010, and the Social Security (Administration) Act 1999. The bill would also repeal the Nauru (High Court Appeals) Act 1976.

The government aims to make merits review through the AAT accessible, fair, just, economical, informal and quick. To this end, this bill will amend the Administrative Appeals Tribunal Act, the A New Tax System (Family Assistance) Administration Act, the Child Support (Registration and Collection) Act, the Military Rehabilitation and Compensation Act, the Paid Parental Leave Act, the Social Security (Administration) Act, and the Student Assistance Act to streamline and harmonise the practices and processes of divisions within the AAT. Amendments to the Administrative Appeals Tribunal Act will also address minor technical and administrative issues within the existing act. Amendments to the Administrative Appeals Tribunal Act will require consequential amendments to the Commonwealth Electoral Act.

The bill will also make minor and technical amendments to the Judiciary Act, which will amend inconsistencies in terminology between the Judiciary Act and the High Court Rules, and to prescribe forms by practice direction rather than retaining them in the High Court Rules.

The bill makes minor amendments to the Federal Court of Australia Act, the Federal Circuit Court of Australia Act, the Family Law Act and the Federal Circuit and Family Court of Australia Act to clarify that hearings conducted remotely using videoconferencing technology are exercised in 'open court'. The bill also amends the Judiciary Act to clarify that a court shall be taken to be exercising federal jurisdiction in a proceeding in the state or territory in which the proceedings commenced. These amendments are appropriate to remove any doubt as to the validity of hearings across the federal courts being undertaken remotely, particularly since the broader use of remote hearings since the beginning of the COVID-19 pandemic.

The bill makes amendments to the Foreign States Immunities Act 1985 (FSI Act). Under international law, foreign states are entitled to immunity from the jurisdiction of the courts of other countries in certain circumstances. In Australia, this immunity is governed by the FSI Act.

These amendments clarify the application of the FSI Act to ex parte proceedings following the High Court's consideration of the issue in Firebird Global Master Fund II Ltd v Republic of Nauru in 2015. In Firebird, the court held that the provision in the FSI Act relating to judgements in default of appearance does not apply to ex parte proceedings.

The bill clarifies the application of the FSI Act to ex parte proceedings to ensure that foreign states are afforded appropriate procedural immunities, and reduces the risk that an Australian court could register a foreign judgement against a foreign state in circumstances where Australia is obliged to afford that foreign state immunity under international law. Furthermore, the bill similarly extends these procedural protections to proceedings relating to the recognition or enforcement of a foreign award against a foreign state pursuant to the International Arbitration Act 1974.

This bill will also clarify that the Admiralty Rules 1988 are rules of court and apply certain provisions of the Legislation Act 2003 so as to exempt the rules from sunsetting, but require that they be registered and published. This aligns the treatment of the Admiralty Rules with the rules of the federal courts.

The bill would repeal the Nauru (High Court Appeals) Act. The Nauru (High Court Appeals) Act was enacted to give effect to the agreement between the Australian government and the government of the Republic of Nauru for appeals to the High Court of Australia from certain classes of decisions of the Supreme Court of Nauru.

This agreement was terminated on 13 March 2018 while still providing for appeals and applications for leave instituted before the date the agreement was terminated to be heard.

All relevant appeals and applications for leave instituted before the agreement's termination have concluded. Accordingly, it is appropriate for the Nauru (High Court Appeals) Act to now be repealed.

The introduction of this bill represents the government's enduring commitment to ensuring that our legal system is fit for purpose. In particular, the bill will improve the efficiency and operation of our federal courts and the AAT.

I commend the bill to the House.

See this speech in context