Second Reading Speech
Mr Williams (Tangney - Attorney-General)This bill clarifies the jurisdiction of the Federal Court and the Federal Magistrates Service with respect to applications under the Administrative Decisions (Judicial Review) Act 1977 and the jurisdiction of the Federal Magistrates Service in matrimonial causes under the Family Law Act 1975.
More specifically, it clarifies that the Federal Court has the jurisdiction to hear applications under the Administrative Decisions (Judicial Review) Act 1977 that are transferred to it by the Federal Magistrates Service and that the Federal Magistrates Service has jurisdiction to hear such applications that are transferred to it by the Federal Court. It also clarifies that the Federal Magistrates Service has jurisdiction to hear matrimonial causes transferred to it by the Family Court.
The amendments regarding this jurisdiction were made by the Federal Magistrates Bill 1999 and the Federal Magistrates (Consequential Amendments) Bill 1999. The courts and the Law Council of Australia were consulted during the drafting of the bills. The bills were publicly available for over six months before they were passed by parliament and were the subject of scrutiny by the Senate Legal and Constitutional Committee, which received over twenty submissions. No issue was raised with the government about the effectiveness of the conferral of this particular jurisdiction.
However, recently, it has come to light that there may be an issue about its effectiveness. The government has been advised that there is some slight uncertainty about the effectiveness of the conferral of administrative review jurisdiction in proceedings transferred between the courts. Advice has also been received that, although the conferral of the matrimonial causes jurisdiction on the Federal Magistrates Service in transferred proceedings is more likely than not to be effective, this is not certain.
These amendments are being made purely to clarify these areas of jurisdiction for the avoidance of doubt. However, the government does not wish there to be any uncertainty about the effectiveness of judgments made in cases that the Federal Magistrates Service has already heard in these areas of jurisdiction.
Whilst no applications under the Administrative Decisions (Judicial Review) Act 1977 have been transferred by the Federal Magistrates Service to the Federal Court, such applications have been transferred from the Federal Court to the Federal Magistrates Service, and matrimonial causes proceedings have been transferred from the Family Court to the Federal Magistrates Service.
To avoid any doubt about the effectiveness of judgments made in these cases, the bill provides that any such judgments made without jurisdiction by the Federal Magistrates Service will have the effect of a valid decision. This approach has been adopted in the past to deal with possibly ineffective judgments, and has been approved by the High Court.
Additionally, under the Trade Practices Act 1974, the Federal Magistrates Service can only award damages of up to a monetary limit of $200,000 (or such other amount as is prescribed) in respect of proceedings instituted in the court. Whilst the intention was that this limitation apply to all trade practices proceedings before the Federal Magistrates Service, there is some doubt as to whether it applies to proceedings transferred to the Federal Magistrates Service by the Federal Court. The opportunity has been taken in this bill to make an amendment to clarify this. I present the explanatory memorandum to the bill.