Williams, Daryl --- "The Judicial Power of the Commonwealth" [2001] ALRCRefJl 28; (2001) 79 Australian Law Reform Commission Reform Journal 60

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Reform Issue 79 Spring 2001

This article appeared on pages 60 – 63 of the original journal.

The Judicial Power of the Commonwealth

By the Hon Daryl Williams AM QC MP*

The Judiciary Act is one of the most significant pieces of legislation ever enacted by the Commonwealth Parliament. It is central to our federal system of government.

It deals with the exercise of original jurisdiction by the federal courts and their appellate jurisdiction. It provides for the exercise of federal jurisdiction by state and territory courts. It confers the right of the Commonwealth, state and territory Attorneys-General to intervene in constitutional cases. And it deals with claims against the Commonwealth and the exercise of judicial power in the Territories.

Scope of the review

It was in January 2000 that I asked the Commission to undertake the deceptively straightforward task of examining the Judiciary Act. In general terms, I requested that the Commission consider whether the Act ensures the most appropriate arrangements are in place for the efficient administration of law and justice in the exercise of federal jurisdiction.

In undertaking the review, I asked the Commission to examine a number of specific issues. These included the source, scope, and exercise of the judicial power of the Commonwealth in civil matters; the distribution of federal judicial power among federal and state courts; the nature of judicial power in the Territories; the extent to which claims may be made against the Commonwealth; and the desirability of consolidating and simplifying the Act.

Even without considering federal jurisdiction in criminal matters or cross-vesting and migration jurisdictions, this was an enormous and complex task. Indeed the report refers to suggestions that some of the issues dealt with could easily have been the subject of individual reviews.¹ And I note that a relatively large number of findings actually recommend that further research be carried out.

It is indicative of the professionalism and intellectual rigour of the Commission that a report of such width of coverage and depth has been produced in such a short period of time. Both the discussion paper and the final report represent a substantial contribution to the body of scholarship on Commonwealth judicial matters. I want to take this opportunity to acknowledge the excellent work of the Commission, the Advisory Committee and Commissioner Opeskin.

The federal judicial system

The Judiciary Act has needed review for some time. As the Commission itself notes, there have been significant changes to the structure and operation of the federal system since 1903.²

Clearly, there has been a considerable expansion in size and importance of the federal judicial system since the Judiciary Act came into operation. This expansion has been a response to the increasing complexity of Australia’s federal system, and the expansion of the role of the Commonwealth in the nation’s life.

At the establishment of the Commonwealth in 1901, there were no federal courts. Each of the colonies that became States had court structures that were already established and continued their operations.

The Constitution provided for the creation of an entirely new federal court, the High Court, which was to have original and appellate jurisdiction. The High Court has been the constant in the federal judicial system over the past century. Its creation created a unifying umbrella over the state courts, providing a court of appeal from the Supreme Courts of the States, and later from the other federal courts.

The original role of the High Court has changed significantly since federation. Its position as the final court of appeal for Australia has been significantly strengthened, and it is now at the apex of the judicial system.³ And its role has been affected by the growth in all areas in which federal courts operate.

By way of example, the Commonwealth Parliament passed only 328 Acts from the establishment of the Commonwealth until 1914.⁴ In the past financial year alone, the Parliament passed in the vicinity of 250 Acts. This increased legislative activity has put greater demands on the workload of the federal judiciary, including the High Court.

Three important legislative changes were made in 1977, which assisted in easing the High Court’s workload. The first was the establishment of the Federal Court, which allowed some of the High Court’s original jurisdiction workload to be transferred to that new court.

The High Court was also given the power in 1977 to remit cases commenced in its original jurisdiction to federal, state and territory courts.⁵ The High Court frequently exercises that power to remit cases.

The third change was the introduction of the need for special leave to appeal to the High Court.

As a result of these changes, the High Court’s predominant function is now to hear appeals from the Full Courts of the Federal and Family Courts and State and Territory Supreme Courts. It is now the usual practice for the High Court in its original jurisdiction to hear only constitutional cases or some judicial review matters under section 75(v) of the Constitution.

The Commission has looked at both the original and appellate jurisdiction of the High Court and has made a number of interesting recommendations, which the Government will be carefully considering.

New federal courts

For many years, state and territory courts and the High Court were solely responsible for the application and interpretation of Commonwealth laws. There were some specialist federal courts created but the range of laws they dealt with was quite limited. Examples of such courts include the Commonwealth Industrial Court⁶ and the Federal Court of Bankruptcy.⁷

A major revamping of the federal justice system came with the establishment of the Family Court of Australia in 1976 and the Federal Court of Australia in 1977. These developments changed the structure of the Australian judicial system. And they changed the relationship of the state courts and the High Court.

There were two main reasons for establishing the Federal Court. As I have already indicated, one was to take over some of the workload of the High Court in matters arising under Commonwealth or territory laws. The other was to provide a federal forum to deal with special areas of federal laws. It was considered the Federal Court would provide a more appropriate structure for the exercise of jurisdiction in the increasingly varied matters of special federal concern. These have come to include things such as social welfare entitlements, family relationships, native title, privacy, intellectual property and discrimination.

The Federal Court’s jurisdiction now covers almost all civil matters arising under Commonwealth legislation as well as some summary criminal matters. The Court also has a substantial and diverse appellate jurisdiction.

As the Commission points out, original jurisdiction is now conferred on the Federal Court by approximately 140 Commonwealth Acts.⁸ These Acts range from the Aboriginal and Torres Strait Islander Commission Act 1989 to the World Heritage Properties Conservation Act 1983. And they cover such diverse topics as treasury bills⁹ and space activities.¹⁰

The Commission has examined the original and appellate jurisdiction of the Federal Court in some detail. Recommendations have been made to clarify uncertainties in particular areas and to streamline the exercise of the appellate jurisdiction of the Court.

The Commission has also made some recommendations concerning the original and appellate jurisdiction of the Family Court.

Additionally, the Commission has made a number of recommendations on the distribution of federal judicial power among federal and state courts. I look forward to considering these recommendations in more detail.

Judicial power in the Territories

I also asked the Commission to look at judicial power in the Territories. And I note the Commission has recommended that a court of appeal be established for the ACT Supreme Court to hear appeals from the ACT Supreme Court,¹¹ which are currently heard by the Federal Court.

The ACT recently passed the Supreme Court Amendment Act 2001 to provide for an ACT Court of Appeal. I am pleased to say that the Commonwealth introduced legislation into the federal Parliament to facilitate the establishment of the ACT Court of Appeal. The Commonwealth Jurisdiction of Courts Legislation Amendment Bill 2001 complements the ACT legislation by removing the appellate jurisdiction from the Federal Court in relation to appeals from the ACT Supreme Court. I would like to take this opportunity to thank the judges of the Federal Court for their appellate work for the ACT. Their work has been of the highest quality and it has been greatly appreciated.

It is expected that the current system of Federal Court judges being appointed as additional judges to the ACT Supreme Court will continue. These judges will also be eligible to sit on the Court of Appeal.

Claims against the Commonwealth

I also asked the Commission to look at the extent to which claims may be made against the Commonwealth. As many of you know, the provisions dealing with suits by and against the Commonwealth have been the source of much judicial consideration.

As the Commission notes, this is a difficult and complex area of law and raises a number of important questions of policy. The Commission has made a number of recommendations in this area, which will require comprehensive examination.

Another area that the Commission has examined is the provisions of the Judiciary Act that specify the law to be applied by courts exercising federal jurisdiction.¹² Many practitioners will appreciate the difficulties that can arise under the existing provisions and will welcome suggestions for clarifying these provisions.

Increasing efficiency — the Federal Magistrates Service

The principle against which the Commission was asked to consider the provisions of the Act was the efficient administration of law and justice in the exercise of federal jurisdiction.

It is clear that there has been a substantial increase in the range of matters now covered by the federal civil justice system dealt with by the Act and related legislation. This increasing workload also brings with it the challenge of ensuring that the delivery of justice remains timely, efficient and cost-effective.

It was this challenge that was the driving force behind the establishment of the Federal Magistrates Service. The Service has facilitated simpler and more streamlined administration of justice in the federal judicial sphere.

To make the concept of speedy justice a reality, the Service has been resolving cases in six months or less. And since it commenced hearing cases in July last year, applications have been filed for over 4,500 family law matters — other than divorces – and for 2,000 non-family law matters. The Service has also dealt with the vast majority of divorce applications.

I am pleased to be able to say that the Federal Magistrates Service has proven to be a successful addition to the federal judicial system. It is a key part of the Howard government’s commitment to ensuring all Australians have a greater range of options for resolving their legal problems as quickly and cheaply as possible. I am confident that it will play an increasingly important role in the exercise of Commonwealth judicial power.

Conclusion

I have not yet had the opportunity to consider this report in any great detail and to formulate the Government’s response to its recommendations. However, it is plain to see that the Commission has succeeded in dissecting and analysing one of the most complex and sometimes esoteric areas of Australian jurisprudence.

The Judiciary Act lies at the very heart of our federal system. The ongoing health of that system depends in part on the willingness of governments to tackle some of the difficult technical issues raised in this report.

I welcome this report as a significant contribution to the federal judicial system.

*The Hon Daryl Williams is the Attorney-General of Australia. This is an edited version of a speech given on 3 October 2001 to launch ALRC 92.

Endnotes

1. Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 (ALRC 92), ALRC, Sydney, para 1.5.

2. Ibid, para 1.3.

3. There can no longer be an appeal from the High Court to the Privy Council: Privy Council (Limitation of Appeals) Act 1968 (Cth). Nor can there be an appeal to the Privy Council from other Australian courts: Privy Council (Appeals from the High Court) Act 1975 (Cth).

4. J Finemore ‘Development of the Commonwealth Statute Book 1901-1986’ in David St L Kelly (ed) Essays on Legislative Drafting: in honour of JQ Ewans, Adelaide Law Review Association, Law School, University of Adelaide, Adelaide, 1988, 28.

5. Judiciary Act 1903 (Cth) s 44.

6. This Court replaced the Commonwealth Conciliation and Arbitration Court following the decision of the High Court in 1956 in the Boilermakers case. The Court was renamed the Australian Industrial Court in 1973.

7. This Court was created in 1930.

8. Federal Court of Australia Annual Report 1999-2000, 1.

9. Treasury Bills Act 1914.

10. Space Activities Act 1998.

11. ALRC 92, Recommendation 39-1.

12. Sections 79 and 80.