Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved in this bill. I am advised that the memorandum was circulated in the chamber today. I seek leave to move government amendments (1) to (5) on sheet BX225 together.

Leave granted.

I move:

(1)    Clause 2, page 2 (at the end of the table), add:

(2)    Schedule 2, item 13, page 10 (lines 27 and 28), omit paragraph (1AA)(c).

(3)    Schedule 2, item 32, page 14 (lines 8 and 9), omit paragraph (4A)(c).

(4)    Schedule 2, item 32, page 14 (lines 20 and 21), omit paragraph (4B)(d).

(5)    Page 22 (after line 23), at the end of the Bill, add:

Federal Court of Australia Act 1976

1  Subsection 6(7) (at the end of the definition of prescribed court)

Add:

      ; or (d)    the Supreme Court of a State.

I will just outline briefly some of the issues in these amendments. As I indicated in the second reading debate, the government proposes some amendments to the bill, in particular to schedule 2. Schedule 2 contains amendments which provide for more streamlined appeal pathways to reduce confusion for litigants and aid the Federal Court of Australia in the efficient management of its resources. Amendments are also proposed to insert a new schedule 4 into the bill. Schedule 4 clarifies that a judge of the Federal Court of Australia, other than the Chief Justice, may hold a concurrent appointment as a judge of one or more state supreme courts.

The specific amendments moved on sheet BX225 implement a recommendation from the Senate Standing Committee on Legal and Constitutional Affairs. Recommendation 2 of the Senate report recommended that proposed paragraph 24(1AA)(c) be deleted from schedule 2 of the bill so that interlocutory decisions relating to security for the payment of costs by a single Federal Court judge can continue to be appealed to the full Federal Court. In submissions to the committee, the Law Council of Australia and the Australian Network of EDOs, environmental defenders offices, strongly supported retaining the right to appeal for security of costs decisions. This is based on the view that removal of this right of appeal could effectively stifle the litigation as parties would be taking a large financial risk irrespective of the merits of the case. The government accepts the view of the Senate standing committee report that removing the right to appeal interlocutory decisions relating to security for the payment of costs by a single Federal Court judge could have the unintended consequence of limiting access to justice for litigants. I note that the requirement to seek leave to appeal these decisions under section 24(1)(a) of the Federal Court of Australia Act enables the Federal Court to manage any potential delays caused by appeals against such interlocutory decisions relating to security for the payment of costs by a single Federal Court judge.

In relation to amendments (3) and (4), although not specifically referred to by the Senate committee or the Law Council of Australia the government proposes that, for consistency reasons, similar paragraphs 33(4A)(c) and 33(4B)(d) also be deleted. These paragraphs provide for no avenue of appeal for decisions relating to security of costs to the High Court when made by the full court exercising original jurisdiction and a single judge or full court in the appellate jurisdiction respectively. The deletion of these paragraphs will continue current arrangements and ensure that security for costs orders will continue to be appellable.

In relation to amendment (5), this amendment clarifies that a judge of the Federal Court of Australia, other than the Chief Justice, may hold a concurrent appointment as a judge of one or more state supreme courts. I suggest to the Senate that this is neither a controversial nor a complex amendment. It will involve amendment to section 6 of the Federal Court of Australia Act to include the supreme court of a state within the definition of a prescribed court.

In March 2008, the Standing Committee of Attorneys-General first agreed to the development of an exchange program between judicial officers of interested jurisdictions. The Federal Court Act does not currently preclude appointment of Federal Court judges to state courts. The amendment will encourage existing arrangements for the temporary transfers of Federal Court judges to state supreme courts. The government’s expectation is that the transfer of Federal Court judges to hear matters in superior state courts will enhance the knowledge and experience of Federal Court judges, benefit other jurisdictions with new ideas and improvements to their courts and result in a more consistent body of national decision-making in areas of common jurisdiction. As I said, this demonstrates the government’s commitment to working with the states and territories in pursuing court excellence on a national basis. I commend the amendments to the Senate.

Question agreed to.