David Van (Victoria, Liberal Party) Share this | Hansard source

I rise today to speak on the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021. This bill does not seek to make any fundamental changes to the operations of the Australian court system, only to make incremental changes that will streamline and clarify existing processes. This is a commonsense bill that seeks to improve the administration processes of the federal courts and the Administrative Appeals Tribunal, the AAT.

At its core the bill seeks to ensure red tape does not interfere with the smooth handling of matters, especially within the context of remote working whilst the pandemic calls for it. Measures such as allowing for judges to make rulings outside of their jurisdiction due to lockdowns and remote working is one such change which will allow for the smooth running of the courts during this period in time. This is a measure which both the courts and the government believe is necessary for the long-term evolution in the way hearings are conducted that will greatly benefit the courts and tribunals moving forward. By amending the definition of 'open court' these amendments seek to clarify the validity of remote hearings and by extension ensure that the court can continue to hear matters throughout the undefined COVID-19 period and beyond.

These measures are sought by the government to also make merits review through the AAT accessible, fair, just, economical, informal and quick. To this end, this bill will also amend the Administrative Appeals Tribunal Act and a range of acts within the families and social services portfolio. These amendments will enable the AAT to standardise alternative dispute resolution processes through most of its divisions and streamline powers to require giving of information or evidence, or production of documents.

This bill addresses harmonisation issues within the Social Services & Child Support Division with the inclusion of new alternative dispute resolution powers consistent with other divisions of the AAT, except for the Migration and Refugee Division. Again, this is to streamline processes to ensure a faster process that is in the benefit of all. Amendments to the Administrative Appeals Tribunal Act will also address minor technical and administrative issues within the existing act. For example, the new subsection 43AA(4) provides the power to correct errors in decisions or statement of reasons. This includes obvious errors in the text of a decision, such as clerical or typographical errors, or inconsistencies between the decision and the statement of reasons. This amendment will ensure that the mistakes made do not get in the way of justice. In particular, the amendment extends the power to correct an error to an authorised member. This amendment will give greater flexibility to the AAT in correcting errors and allow those errors to be corrected more quickly in circumstances where the presiding member is unavailable.

Amendments to the Administrative Appeals Tribunal Act will also require consequential amendments to the Commonwealth Electoral Act. Other bills listed for amendment are the Admiralty Act, the A New Tax System (Family Assistance) (Administration) Act, the Child Support (Registration and Collection) Act, the Family Law Act 1975, the Federal Circuit and Family Court of Australia Act 2021, the Federal Circuit Court of Australia Act 1999 and the Federal Court of Australia Act 1976. Also amended as part of this bill is the Foreign Judgements Act 1991, the Foreign States Immunities Act, the International Arbitration Act, the Judiciary Act, the Military Rehabilitation and Compensation Act, the Nauru (High Courts Appeals) Act, the Paid Parental Leave Act and the Social Security (Administration) Act. I'll touch on a couple of those in the time I have left.

This bill proposes to make technical amendments to the Judiciary Act 1903 which will reflect modern practices and terminology. It will enhance consistency with the High Court Rules 2004 and clarify the power of the court to prescribe forms other than in the rules of court. The bill further seeks to amend the Federal Court of Australia Act 1976 to allow for short-form reasons in the Federal Court's appellate jurisdiction in civil proceedings. This will improve efficiency in the management of appeals in the Federal Court of Australia. The bill also seeks to amend the Federal Court of Australia Act 1976, the Family Law Act 1975, the Federal Circuit Court of Australia Act 1999 and the Federal Circuit and Family Court of Australia Act 2021, as mentioned earlier. That is to clarify that a judge can sit in a location that is not a court room or chambers to conduct a hearing remotely. Surely everyone can see that this is a practical measure that is sorely needed during this time.

The bill further seeks to amend the Judiciary Act 1903 to clarify that the exercise of federal jurisdiction is considered to take place in the state or territory in which a proceeding is commenced or remitted. In its amendments to the Foreign States Immunities Act 1985, the FSI Act, the government seeks to prevent an Australian court from entering a judgement other than an interlocutory or provisional judgement making an order for the registration of a foreign judgement or making an order for the recognition or enforcement of a foreign award against a foreign state in ex parte proceedings. This bill will align the application of the Admiralty Rules 1988 with the rules of the federal courts. This will be achieved by clarifying that the Admiralty Rules are rules of court in applying certain provisions of the Legislation Act 2003, so as to exempt the rules from sunsetting, while requiring that they be registered and published.

Finally, this bill will formally remove Commonwealth legislation that establishes an appeal pathway from the Supreme Court of Nauru to the High Court of Australia. By way of background, 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 following the government of Nauru providing formal notification of its intention to withdraw from the agreement on 12 December 2017. The agreement's termination meant that the High Court was no longer able to hear appeals from the Supreme Court of Nauru, except for appeals and applications for leave instituted before the date the agreement was terminated. The High Court has confirmed that all relevant appeals and applications for leave instituted before the agreement's termination have now concluded.

The bill will also make minor and technical amendments to the Judiciary Act. These will amend inconsistencies in terminology between the Judiciary Act and the High Court Rules in prescribed forms by practice direction, rather than retaining them in the High Court Rules. The bill will also amend the Federal Court of Australia Act to produce significant efficiencies in the Federal Court's management of appeals in civil proceedings. Amendments to the Federal Court of Australia Act will allow the Federal Court to give reasons in short form for a decision dismissing an appeal if the court is unanimously of the opinion that the appeal does not raise any question of general principle.

In the same vein, under international law, foreign states are entitled to immunity from jurisdiction of the courts of certain other countries in certain circumstances. This principle is known as foreign state immunity. The purpose of foreign state immunity is to enable states to carry out their public functions effectively and to enable the orderly conduct of international relations. 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 back in 2015. The bill seeks to clarify and 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 the law.

In conclusion, this is a bill that will ensure that, when a court hearing is conducted remotely, it operates as efficiently as possible—