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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Jurisdiction
of Courts Legislation Amendment Bill
2001
No. ,
2001
(Attorney-General)
A
Bill for an Act to amend the law relating to the jurisdiction of courts, and for
other purposes
Contents
Part 1—Amendments 3
Federal Court of Australia Act
1976 3
Judiciary Act
1903 3
Part 2—Application and transitional
provisions 5
Part 1—Amendments 7
Federal Court of Australia Act
1976 7
Part 2—Application of
amendments 16
A Bill for an Act to amend the law relating to the
jurisdiction of courts, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Jurisdiction of Courts Legislation
Amendment Act 2001.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Schedule 1 commences on a day to be fixed by
Proclamation.
(3) Subject to subsection (4), Schedule 2 commences on a day to
be fixed by Proclamation.
(4) If Schedule 2 does not commence under subsection (3) within
the period of 6 months beginning on the day on which it receives the Royal
Assent, it commences on the first day after the end of that period.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Federal Court of Australia
Act 1976
1 Paragraph 24(1)(b)
After “Territory”, insert “(other than the Australian
Capital Territory or the Northern Territory)”.
2 Paragraph 24(1)(c)
Omit “of a State, other than a Full Court of the Supreme Court of a
State”, substitute “(other than a Full Court of the Supreme Court)
of a State, the Australian Capital Territory or the Northern
Territory”.
3 Subsections 24(1AA), (2), (2A), (3) and
(4)
Repeal the subsections.
4 Subsection 24(5)
After “State” (wherever occurring), insert “or
Territory”.
5 Subsection 24(6)
Repeal the subsection.
6 Section 30A
Repeal the section.
7 Subsection 32A(1)
After “conferred”, insert “on the Supreme Court of the
Australian Capital Territory and”.
8 Paragraph 59(2)(ca)
Repeal the paragraph.
9 Subsection 35AA(1)
Omit “the Northern Territory”, substitute “a
Territory”.
Note: The heading to section 35AA is altered by
omitting “the Northern Territory” and substituting
“a Territory”.
10 After subsection 35AA(2)
Insert:
(2A) An appeal may not be brought to the High Court from a judgment of the
Supreme Court of the Australian Capital Territory given after the commencement
of this subsection when that Court is known as the Court of Disputed Elections
under subsection 252(1) of the Electoral Act 1992 of that
Territory.
11 Subsection 35AA(3)
Omit “the Northern Territory”, substitute “a
Territory”.
Part 2—Application
and transitional provisions
12 Definitions
In this Part:
ACT Supreme Court means the Supreme Court of the Australian
Capital Territory.
Federal Court means the Federal Court of Australia.
13 Application of
amendments
(1) The amendment made by item 1 applies in relation to:
(a) appeals instituted on or after the commencement of that item;
and
(b) appeals instituted before the commencement of that item but in respect
of which the Federal Court has not begun a substantive hearing before that
commencement; and
(c) cases stated or questions reserved under section 26 of the
Federal Court of Australia Act 1976 on or after the commencement of that
item.
(2) The amendment made by item 2 applies in relation to:
(a) appeals from judgments of a court given on or after the commencement
of that item; and
(b) cases stated or questions reserved under section 26 of the
Federal Court of Australia Act 1976 on or after the commencement of that
item.
(3) The amendment made by item 7 applies in relation to matters
pending in the Federal Court on or after the commencement of that
item.
14 Transfer of certain matters to the ACT
Supreme Court
(1) If an appeal was instituted in the Federal Court and the Federal Court
had not begun the substantive hearing of the appeal before the day on which
item 1 commences, then the appeal is transferred to the ACT Supreme Court
on that day.
(2) If a case was stated or a question was reserved for the consideration
of the Federal Court under section 26 of the Federal Court of Australia
Act 1976 and the Federal Court had not begun the substantive hearing of the
case or question before the day on which item 1 commences, then the case or
question is transferred to the ACT Supreme Court on that day.
(3) If a question was submitted for determination of a Full Court of the
Federal Court under section 30A of the Federal Court of Australia Act
1976 and the Federal Court had not begun the substantive hearing of the
question before the day on which item 6 commences, then the question is
transferred to the ACT Supreme Court on that day.
(4) If an appeal, case or question is transferred to the ACT Supreme Court
under this item, then:
(a) all documents filed in the Federal Court in relation to the appeal,
case or question are to be transferred to the ACT Supreme Court; and
(b) any money lodged with the Federal Court in relation to the appeal,
case or question is to be transferred to the ACT Supreme Court and is taken to
be money lodged with the ACT Supreme Court in relation to the appeal, case or
question; and
(c) everything done in or in relation to the appeal, case or question in
the Federal Court is taken to have been done in the ACT Supreme Court.
15 Regulations
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Schedule to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Schedule.
(2) In particular, regulations may be made for matters of a transitional or
saving nature arising from the amendments made by this Schedule.
Federal Court of Australia
Act 1976
1 Section 4
Insert:
audio link means facilities (for example, telephone
facilities) that enable audio communication between persons in different
places.
2 Section 4
Insert:
video link means facilities (for example, closed-circuit
television facilities) that enable audio and visual communication between
persons in different places.
3 Division 2 of
Part II
Repeal the Division.
4 Subsection 18N(4)
Omit “, other than the Registrar and the Deputy Sheriffs,”,
substitute “(other than the Registrar, the Deputy Sheriffs and the
Marshals)”.
5 Subsection 18N(5)
After “Sheriffs”, insert “and the
Marshals”.
6 Subsection 20(1A)
After “that matter”, insert “, or a specified part of
that matter,”.
7 Subsection 20(2)
Omit “The”, substitute “Subject to subsections (3)
and (5), the”.
8 Subsection 20(2)
Omit “the tribunal”, substitute “a
tribunal”.
9 At the end of
section 20
Add:
(3) If the matter coming before the Court as mentioned in
subsection (2) is an application:
(a) for leave or special leave to institute proceedings in the Court;
or
(b) for an extension of time within which to institute proceedings in the
Court; or
(c) for leave to amend the grounds of an application or appeal to the
Court; or
(d) to stay a decision of the tribunal or authority mentioned in
subsection (2);
the matter may be heard and determined by a single Judge or by a Full
Court.
(4) The Rules of Court may make provision enabling applications of the
kind mentioned in subsection (3) to be dealt with, subject to conditions
prescribed by the Rules, without an oral hearing.
(5) In a matter coming before the Court as mentioned in
subsection (2), a single Judge or a Full Court may:
(a) join or remove a party; or
(b) make an order (including an order for costs) by consent disposing of
the matter; or
(c) make an order that the matter be dismissed for want of prosecution;
or
(d) make an order that the matter be dismissed for failure to comply with
a direction of the Court; or
(e) give directions about the conduct of the matter, including directions
about:
(i) the use of written submissions; and
(ii) limiting the time for oral argument.
(6) The Rules of Court may make provision enabling the powers in
subsection (5) to be exercised, subject to conditions prescribed by the
Rules, without an oral hearing.
10 Subsection 24(1A)
After “interlocutory judgment”, insert “of a type
prescribed by the Rules of Court”.
11 After paragraph
25(2B)(b)
Insert:
(ba) make an order that an appeal to the Court be dismissed for want of
prosecution; or
(bb) make an order that an appeal to the Court be dismissed for failure to
comply with a direction of the Court; or
12 Paragraph 27(b)
Omit “telephone”, substitute “audio
link”.
13 Paragraph 37(b)
After “signed”, insert “(including by way of electronic
signature)”.
14 At the end of
section 37
Add:
(2) For the purposes of paragraph (1)(b), a document is taken to be
signed by the Registrar if the electronic signature of the Registrar is applied
to the document by an officer acting with the authority of the
Registrar.
(3) In this section:
electronic signature of a person means the person’s
unique identification in an electronic form that is approved by the
Registrar.
15 At the end of paragraphs 45(2)(a), (b) and
(c)
Add “or”.
16 After paragraph 45(2)(c)
Insert:
(ca) an employee of the Commonwealth who is:
(i) authorised under paragraph 3(c) of the Consular Fees Act 1955;
and
(ii) exercising his or her function in that place; or
(cb) an employee of the Australian Trade Commission who is:
(i) authorised under paragraph 3(d) of the Consular Fees Act 1955;
and
(ii) exercising his or her function in that place; or
17 Paragraph 45(2)(e)
After “(c)”, insert “, (ca), (cb)”.
18 At the end of subsection
47(1)
Add:
Note: For testimony etc. by video link, audio link or other
appropriate means, see sections 47A to 47F.
19 Subsections 47(1A), (1B) and
(1C)
Repeal the subsections.
20 Subsection 47(6)
Omit “the foregoing provisions of this section” substitute
“this section and section 47A”.
21 At the end of subsection
47(6)
Add:
Note: For testimony etc. by video link, audio link or other
appropriate means, see sections 47A to 47F.
22 After section 47
Insert:
(1) The Court or a Judge may, for the purposes of any proceeding, direct
or allow testimony to be given by video link, audio link or other appropriate
means.
Note: See also section 47C.
(2) The testimony must be given on oath or affirmation unless:
(a) the person giving the testimony is in a foreign country; and
(b) either:
(i) the law in force in that country does not permit the person to give
testimony on oath or affirmation for the purposes of the proceeding;
or
(ii) the law in force in that country would make it inconvenient for the
person to give testimony on oath or affirmation for the purposes of the
proceeding; and
(c) the Court or the Judge is satisfied that it is appropriate for the
testimony to be given otherwise than on oath or affirmation.
(3) If the testimony is given otherwise than on oath or affirmation, the
Court or the Judge is to give the testimony such weight as the Court or the
Judge thinks fit in the circumstances.
(4) The power conferred on the Court or a Judge by subsection (1) may
be exercised:
(a) on the application of a party to the proceedings; or
(b) on the Court’s or Judge’s own initiative.
(5) This section applies whether the person giving testimony is in or
outside Australia, but does not apply if the person giving testimony is in New
Zealand.
Note: See the Evidence and Procedure (New Zealand) Act
1994.
(1) The Court or a Judge may, for the purposes of any proceeding, direct
or allow a person:
(a) to appear before the Court or the Judge; or
(b) to make a submission to the Court or the Judge;
by way of video link, audio link or other appropriate means.
Note: See also section 47C.
(2) The power conferred on the Court or a Judge by subsection (1) may
be exercised:
(a) on the application of a party to the proceedings; or
(b) on the Court’s or Judge’s own initiative.
(3) This section applies whether the person appearing or making the
submission is in or outside Australia, but does not apply if the person
appearing or making the submission is in New Zealand.
Note: See the Evidence and Procedure (New Zealand) Act
1994.
Video link
(1) The Court or a Judge must not exercise the power conferred by
subsection 47A(1) or section 47B in relation to a video link unless the
Court or the Judge is satisfied that the following conditions are met in
relation to the video link:
(a) the courtroom or other place where the Court or the Judge is sitting
is equipped with facilities (for example, television monitors) that enable all
eligible persons present in that courtroom or place to see and hear the person
(the remote person) who is:
(i) giving the testimony; or
(ii) appearing; or
(iii) making the submission;
by way of the video link;
(b) the place at which the remote person is located is equipped with
facilities (for example, television monitors) that enable all eligible persons
present in that place to see and hear each eligible person who is present in the
courtroom or other place where the Court or the Judge is sitting;
(c) such other conditions (if any) as are prescribed by the Rules of Court
in relation to the video link;
(d) such other conditions (if any) as are imposed by the Court or the
Judge.
(2) The conditions that may be prescribed by the Rules of Court in
accordance with paragraph (1)(c) include conditions relating to:
(a) the form of the video link; and
(b) the equipment, or class of equipment, used to establish the link;
and
(c) the layout of cameras; and
(d) the standard of transmission; and
(e) the speed of transmission; and
(f) the quality of communication.
Audio link
(3) The Court or a Judge must not exercise the power conferred by
subsection 47A(1) or section 47B in relation to an audio link unless the
Court or the Judge is satisfied that the following conditions are met in
relation to the audio link:
(a) the courtroom or other place where the Court or the Judge is sitting
is equipped with facilities (for example, loudspeakers) that enable all eligible
persons present in that courtroom or place to hear the person (the remote
person) who is:
(i) giving the testimony; or
(ii) appearing; or
(iii) making the submission;
by way of the audio link;
(b) the place at which the remote person is located is equipped with
facilities (for example, loudspeakers) that enable all eligible persons present
in that place to hear each eligible person who is present in the courtroom or
other place where the Court or the Judge is sitting;
(c) such other conditions (if any) as are prescribed by the Rules of Court
in relation to the audio link;
(d) such other conditions (if any) as are imposed by the Court or the
Judge.
(4) The conditions that may be prescribed by the Rules of Court in
accordance with paragraph (3)(c) include conditions relating to:
(a) the form of the audio link; and
(b) the equipment, or class of equipment, used to establish the audio
link; and
(c) the standard of transmission; and
(d) the speed of transmission; and
(e) the quality of communication.
Other appropriate means
(5) The Court or a Judge must not exercise the power conferred by
subsection 47A(1) or section 47B in relation to an appropriate means other
than video link or audio link unless the Court or the Judge is satisfied that
the following conditions are met in relation to that means:
(a) the conditions (if any) as are prescribed by the Rules of Court in
relation to that means;
(b) such other conditions (if any) as are imposed by the Court or the
Judge.
Eligible persons
(6) For the purposes of the application of this section to a particular
proceeding, eligible persons are such persons as the Court or a
Judge considers should be treated as eligible persons for the purposes of that
proceeding.
If, in the course of an examination or appearance of a person by video
link, audio link or other appropriate means in accordance with this Part, it is
necessary to put a document to the person, the Court or a Judge may direct or
allow the document to be put to the person:
(a) if the document is physically present in the courtroom or other place
where the Court or the Judge is sitting:
(i) by causing a copy of the document to be transmitted to the place where
the person is located; and
(ii) by causing the transmitted copy to be put to the person; or
(b) if the document is physically present in the place where the person is
located:
(i) by causing the document to be put to the person; and
(ii) by causing a copy of the document to be transmitted to the courtroom
or other place where the Court or the Judge is sitting.
An oath to be sworn, or an affirmation to be made, by a person (the
remote person) who is to give testimony by video link, audio link
or other appropriate means in accordance with this Part may be
administered:
(a) by means of the video link, audio link or other appropriate means in a
way that, as nearly as practicable, corresponds to the way in which the oath or
affirmation would be administered if the remote person were to give testimony in
the courtroom or other place where the Court or the Judge is sitting;
or
(b) if the Court or the Judge allows another person who is present at the
place where the remote person is located to administer the oath or
affirmation—by that other person.
(1) The Court or a Judge may make such orders as the Court or the Judge
thinks just for the payment of expenses incurred in connection with:
(a) the giving of testimony by video link, audio link or other appropriate
means in accordance with this Part; or
(b) the appearance of a person by video link, audio link or other
appropriate means in accordance with this Part; or
(c) the making of submissions by video link, audio link or other
appropriate means in accordance with this Part.
(2) Subsection (1) has effect subject to the regulations.
Sections 47A to 47F do not affect the operation of the Evidence
and Procedure (New Zealand) Act 1994.
23 Paragraphs 59(2)(ta), (tb) and
(v)
Omit “telephone”, substitute “audio
link”.
24 Paragraph 59(2A)(a)
Omit “telephone”, substitute “audio
link”.
Part 2—Application
of amendments
25 Application of
amendments
(1) The amendment made by item 6 applies in relation to matters coming
before the Court before, on or after the commencement of this item.
(2) The amendments made by items 7, 8 and 9 apply in relation to
matters coming before the Court after the commencement of this item.
(3) The amendment made by item 10 applies in relation to appeals to
the Court brought after the commencement of this item.
(4) The amendment made by item 11 applies in relation to appeals to
the Court brought after the commencement of this item.
(5) The amendments made by items 13 and 14 apply in relation to
documents issued from the Court after the commencement of this item.
(6) The amendments made by items 1, 2, 12, 15, 16, 17, 18, 19, 20, 21,
22, 23 and 24 apply in relation to proceedings instituted in the Court before,
on or after the commencement of this item.