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

Bruce Baird (Cook, Liberal Party) Share this | Link to this | Hansard source

It is my pleasure to make some additional comments on the Judiciary Legislation Amendment Bill 2006. From what I understand, the bill has two major purposes. The first is to give effect to purported orders made by non-judicial officers of state courts of summary jurisdiction, contrary to paragraph 39(2)(d) of the Judiciary Act, 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. I think most members of the House would agree with these proposals, and it seems entirely sensible that this legislation has been brought forward in the House. I commend the minister and the parliamentary secretary for bringing forward these proposed changes.

The effect of paragraph 39(2) 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. I am sure the parliamentary secretary would agree that this is an entirely appropriate mechanism in order to streamline the activities of the court and in terms of the act as previously proposed.

In response to evidence that a large number of family law consent orders were made contrary to paragraph 39(2)(d), the government has added a new part XIVB to the Family Law Act of 1975. Part XIVB provides 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. I think it is appropriate that we do make these changes in line with the Family Law Act, and they are in line with the recommendations made by the parliamentary secretary in this Main Committee. I believe that this is going to be an appropriate piece of legislation which is going to assist considerably in relation to the judiciary in this country. I welcome the member for Fisher, who has arrived in the House.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

I thank my friend and colleague the member for Cook. I do not know whether the member for Gellibrand has spoken.

Chris Bowen (Prospect, Australian Labor Party) Share this | Link to this | Hansard source

She was detained in the House.

Dick Adams (Lyons, Australian Labor Party) Share this | Link to this | Hansard source

The honourable member for Fisher has the floor.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

Thank you. I am pleased to be able to rise in the Main Committee today to speak on the Judiciary Legislation Amendment Bill 2006. This bill is designed to update legislation pertaining to the duties and responsibilities of magistrates court registrars so as to support them better in their positions and to streamline the operation of these officers. It will provide for the support of the magistrates court in each of the states in their deliberations on federal family law matters and other matters of federal jurisdiction.

Unfortunately, some registrars in the magistrates courts have been unintentionally sidestepping some of the requirements of the Judiciary Act 1903 by making consent orders in family law matters, which is in fact exercising federal family law jurisdiction. In paragraph 39(2)(d) of the act it is clear that matters of federal jurisdiction that are allowed to be dealt with in state courts can only be judicially exercised by a magistrate in those courts. Legislative changes were made earlier this year through the Family Law Amendment (Shared Parental Responsibility) Bill 2006 which ensured that the rights and responsibilities of parties affected by these Family Court consent orders were the same as if those orders had been issued by the magistrate, as was initially required.

This sufficiently addressed the issue of the family law matters; however, there remained the prospect that other matters of federal jurisdiction that were able to be dealt with by a state court may have been subject to the same predicament. Initial inquiries suggested that there had been no examples of such situations. However, as is often the case, further investigation revealed that similar dilemmas had been purported to have resulted through orders made in relation to taxation matters and other matters which are of federal jurisdiction. This bill, the Judiciary Legislation Amendment Bill 2006, addresses those issues.

It is pertinent to note that registrars already have the power under their relevant state legislation to make orders of this kind on state matters. The changes proposed in this bill will remove the barriers to the registrars by repealing section 39(2)(d). It will also repeal section 68(3) of the act, which had a similar effect on the making of orders relating to criminal law matters of federal jurisdiction, although there are no known situations where an order was made by a registrar in contravention of section 68(3).

It is important that this bill is passed to put in place safeguards against the possibility of legal challenges to such orders. It is arguable that these overriding issues have in part arisen due to the relatively young age of the Federal Magistrates Court, which was established in 1999 to help ease the significant case load of the Federal Court and the Family Court. It is not unheard of to identify anomalies from time to time in our legislation which are able to be addressed and corrected. It is only through the use of legislation that such issues can be identified and addressed. It has been the case that spelling and punctuation errors, typos and wrong numbers have at times been identified and able to be corrected. I suppose it is irritating that this has to occur but, human error being what it is, these are matters which will occasionally have to be addressed.

Deputy registrars and registrars have considerable responsibility to ensure our court systems operate as smoothly and effectively as possible. Their duties include coordinating court-sitting lists, providing advice to those using the courts and to the general public, ensuring court records are kept up to date, keeping the books for money paid to the court and ensuring that it is distributed as required, and preparing and issuing court processes in the civil court, the family law court and the relevant criminal jurisdictions.

It is important that the legislation supports the carrying out of this role. The bill also enables each of our states to determine themselves which classification of court officer can exercise federal jurisdiction and in what specific circumstances they are able to do just that. The provisions of this bill help to both correct and clarify the situation with regard to state officers exercising matters of federal jurisdiction. Happily it is a non-controversial bill, as many bills that pass through the parliament are. It has the support of both sides of the House and that is a good thing. I am very happy to commend this bill to the chamber.

Chris Bowen (Prospect, Australian Labor Party) Share this | Link to this | Hansard source

My contribution will be in a similar vein to that of the honourable member for Cook. I know the honourable member for Gellibrand wishes to contribute but there is a debate going on in the main chamber, where she has been detained. I understand there will be a division shortly. Until that occurs, she is detained in the main chamber.

The Judiciary Legislation Amendment Bill 2006 has two main purposes. The first is to give effect to the purported orders made by non-judicial officers of state courts of summary jurisdiction contrary to paragraph 39(2)(d) of the Judiciary Act 1903 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 federal jurisdiction. The effect of paragraph 39(2)(d) is that registrars and other non-judicial officers of state courts of summary jurisdiction do not have the jurisdiction to make certain orders in federal matters such as default orders. A corresponding provision, section 68(3) of the Judiciary Act, provides for similar restrictions in relation to the exercise of federal jurisdiction in criminal cases. In response to the evidence that a large number of family law consent orders were made contrary to paragraph 39(2)(d), the government added part XIVB to the Family Law Act.

A division having been called in the House of Representatives—

Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I rise today to speak on the Judiciary Legislation Amendment Bill 2006. I thank the Main Committee for its indulgence, due to the difficulties that have been experienced with multiple bills being debated in other places today. The need for this bill arises from the government’s discovery late in 2005 that a large number of family law consent orders were being made by registrars in the Victorian Magistrates Court contrary to the restrictions contained in section 39(2)(d) of the Judiciary Act. Following this revelation, the government introduced amendments in the Family Law Amendment (Shared Parental Responsibility) Bill 2006 to ensure that the ineffective family law orders that had been made could be effectively validated. Subsequently, the government learnt that there were actually a number of other orders—for example, in relation to tax matters and other federal law matters—that had also been made by other state courts contrary to section 39(2)(d).

Accordingly we are now here with this bill, which aims to rectify the problem. Clearly, the parties who have been affected by this jurisdictional bungle need to be provided with certainty as quickly as possible. As far as those parties are concerned, they have presented to court and had their matter dealt with and would imagine that everything is completely in order. This bill has three aims. Firstly, it seeks to give effect to those orders that have been made contrary to section 39(2)(d) of the Judiciary Act 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 such order had been an order made by the court in the exercise of its federal jurisdiction. Secondly, the bill seeks to create new statutory rights and liabilities for parties so that these new rights may be exercised and enforced in the same manner as valid orders of the relevant court. In this respect, the bill aims to provide certainty for the parties and avoid unnecessary legal challenges. Thirdly, the bill repeals section 39(2)(d) and section 68(3) of the Judiciary Act in order to prevent this situation arising again in the future. Given that we have been here twice already now dealing with these matters, that does seem to be a sensible precaution.

Let me deal firstly with some of the background to these amendments. Under section 76 of the Constitution, the parliament may make laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the parliament. Under section 77 of the Constitution, the Commonwealth parliament may invest any state court with federal jurisdiction with respect to any of the matters mentioned in sections 75 and 76 of the Constitution. The Judiciary Act of 1903 regulates the structure of the Australian judicial system. Federal jurisdiction is conferred on state courts in general terms by section 39 of the Judiciary Act. Section 39(2) of the Judiciary Act vests state courts with jurisdiction over the full range of matters enumerated in sections 75 and 76 of the Constitution, except those made exclusive to the High Court.

Section 39(2) imposes three conditions or restrictions on the exercise of federal jurisdiction by state courts. One of these current conditions states that when a state court exercises federal jurisdiction summarily, the jurisdiction must be exercised by a person falling within one of three classes: firstly, a stipendiary police or special magistrate; secondly, a state magistrate specially authorised by the Governor-General to exercise such jurisdiction; or, thirdly, an arbitrator on whom jurisdiction is conferred by state law. In other words, registrars and other non-judicial officers of state courts of summary jurisdiction do not have jurisdiction to make certain orders in federal matters. Drafted in 1903, the presumed goal of the section was to ensure that federal jurisdiction was exercised only by suitably qualified persons, reflecting a concern that some lay magistrates might not be suitable to exercise federal jurisdiction by reason of their lack of formal legal qualifications, experience or expertise. As I will note later, this situation has now, of course, changed dramatically.

Section 68 of the Judiciary Act provides state and territory courts with jurisdiction to handle criminal cases arising under Commonwealth law. But the section does limit the range of state and territory courts which have jurisdiction over committals and summary convictions to a judge, stipendiary police or special magistrate, or some magistrate of the state or territory specially authorised by the Governor-General to exercise such jurisdiction. In summary, section 68 provides similar restrictions to section 39 in relation to the exercise of federal jurisdiction but in criminal rather than civil matters.

Despite these restrictions being in the Judiciary Act, parties to the relevant proceedings have legitimately acted on the assumption that the orders they have received in state courts were valid and could be relied upon. These parties need to be provided with certainty as quickly as possible. The bill seeks to do that and to rectify the irregularities in those cases and change the Judiciary Act to prevent the problem in the future.

I will now turn in some detail to the provisions of the bill. As I have said, the bill amends the Judiciary Act in the ways that I have set out and schedule 1 is designed to fix this problem for the future. The explanatory memorandum actually makes clear that:

This will place State summary courts in the same position as State district, county and supreme courts, enabling States to determine, subject to constitutional requirements, which class of officer may exercise federal jurisdiction and in what circumstances.

Obviously that will help with the resolution of a number of matters and make sure that those orders that have already been made cannot be made in the future inappropriately.

I am not going to go through a number of the other parts of this bill because I think that the other speakers have already dealt with them. However, I do want to flag that schedule 1 part 2 creates the legislative framework for validating past orders. It is important to give those parties that I have mentioned who have unwittingly used this procedure certainty and consistency. It would not be in anybody’s interests, theirs or the community’s, to require that all these matters be relitigated. This part is, though, extremely technical, because the transfer and transitional arrangements must be meticulously dealt with to ensure that all parties are properly protected.

There is a concern about a number of the processes that have been taken. I am just looking to see whether it is necessary to go through the particular provisions of the way that these orders are going to be made effective. I think it is sufficient to note that the part deals with it and that the provisions are extremely detailed. It is important that, if a person is relying on an order that has been made by one of these courts or if there is an enforcement issue relating to an order, those orders can be enforced in the proper way. So an unusual process does have to be adopted to do this and we are assured by the Attorney’s office and the department that there are no constitutional or other problems with taking this course of action.

Labor also understands that the state governments have been extensively consulted and are agreeable to the changes that are proposed in the bill, considering it an opportunity to better control the allocation of workloads within their jurisdictions. While Labor acknowledges that state courts are adequately equipped with appropriately-trained staff to exercise federal jurisdiction in the manner intended by the bill at this time, we do remain concerned about the future ramifications of these changes. We hope that the department intends to monitor these changes, keeping a closer eye on the operations of the courts than it evidently has done in the recent past. Of course there are jurisdictional issues, but the federal department does have an interest in the operation of state courts to some extent, given that they are exercising so much federal jurisdiction these days.

We have been assured by the department that there are no unforeseen constitutional issues arising from this bill. We do nevertheless have some apprehension about the approach taken to validate past orders. We hope that the government’s advice is right; otherwise, inevitably, it will be challenged in the future either by an affected party or by someone who no longer wishes to be bound by some of these orders. Further, we do note that the state courts exercising federal jurisdiction are still subject to constitutional requirements—those of chapter 3 and others. We note that the state courts will need to manage this change carefully to ensure that both federal and state jurisdiction is exercised only by suitably qualified officers. Again, we hope that the department’s advice is right on this and that, as I have already said, the department will appropriately monitor developments in this regard.

The government, however, claims that these changes will contribute to a more accessible, efficient and flexible civil justice system—which does seem a somewhat gross overstatement of what this bill is going to deliver. It is a tidying-up bill if nothing else. It does of course, by making changes to the Judiciary Act to ensure that these problems cannot arise in the future, provide some flexibility—although that is really quite small in the scheme of things.

A more accessible, efficient and flexible civil justice system is not going to be delivered, however, from this bill. It will only come about with a detailed forward plan for our federal courts, with adequate resources being provided, with reform systems for judicial appointments and complaints, and with a real commitment to timely resolution of legal matters and a proper resourcing of legal support either through community legal centres or legal aid. Unfortunately, the government shows no interest in any of these matters—all ones which could contribute much more to an accessible, efficient and flexible civil justice system.

I have also spoken before of the need for a plan for our courts that goes beyond one electoral cycle. The Attorney-General does not appear to have any plan for the federal judiciary, no map for how our federal courts should interact between themselves or with state courts, no strategy for the judges and no concern for the prompt resolution of federal legal matters—and, I hasten to say, no strategy for the number of judges rather than for any decisions that they might take. The problem arising in this instance is merely a reflection of this government’s general neglect of the judiciary, the vital third arm of our democracy.

Other than the question of judicial pensions, I note that no parliamentary committee has considered any issue affecting the judiciary in the life of this government. I believe it is now time for a joint select committee into the judiciary to be established to consider a range of structural matters affecting the federal judiciary in a thorough and proper way. It could help air a range of issues, including the difficult ones like the appointment of judges, complaints processes, and complaints against judges and processes for handling those. It could set up an appropriate mechanism for dialogue between the parliament, the courts, the profession and, importantly, the broader community. It seems to me that these sorts of activities would do much more to deliver—as the government claims that these changes in this rather modest bill do—and contribute to an accessible, efficient and flexible justice system than the tidying-up bill that we are passing here today.

Notwithstanding a few of the moderate concerns that we have, particularly in relation to some constitutional implications of this bill, Labor recognise the need to provide certainty to the parties who have unwittingly been caught up in this exercise of inappropriate jurisdiction. They need to be dealt with promptly. Accordingly, we support the bill and the government’s efforts to try to ensure that all of the technical transitional provisions are appropriately included in the bill. I commend it to the House.

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

in reply—I thank the members who have contributed to this debate on the Judiciary Legislation Amendment Bill 2006: the member for Cook, the member for Prospect, the member for Fisher and, just a moment ago, the member for Gellibrand.

In response to a few points the member for Gellibrand raised, she raised some concerns about whether the ex post facto or retrospective validation of purported orders made by non-judicial officers of state courts would be constitutionally valid. I was gratified to hear of her concern, but characteristically she did not provide any suggestions as to how her concern could be dealt with. She provided no amendments, and no solutions were offered at all.

Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Uncharacteristically, you mean.

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

I said ‘characteristically’; you said ‘uncharacteristically’. I said characteristically and that is exactly what I meant. I thank her for her concerns, but I remind the honourable member that in legal drafting, as in most areas, it is better to be part of the solution rather than just raising the problem.

This bill will give 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. In light of the comments of the member for Gellibrand, I am puzzled why these actions by non-judicial officers of state courts are evidence of some neglect by the Commonwealth of the federal judiciary. Again, that was another gap in the honourable member’s remarks today.

This bill will provide that the rights and liabilities of all persons are the same as if each such order made by a non-judicial officer of state courts of summary jurisdiction had been an order made by the court in the exercise of its federal jurisdiction. It also repeals paragraph 39(2)(d) and subsection 68(3) of the Judiciary Act in order to place state courts of summary jurisdiction in the same position as state, district, county and supreme courts, enabling states to determine, subject to constitutional requirements, which class of officer may exercise federal jurisdiction and in what circumstances.

The bill will allow states to determine which officers, including non-judicial officers, can exercise federal jurisdiction. Consequently, it will no longer be necessary for states to have in place different arrangements for handling matters in federal jurisdiction. By doing so, this bill contributes to achieving a more accessible, efficient and flexible civil justice system.

Question agreed to.

Bill read a second time.

Ordered that this bill be reported to the House without amendment.