Federal Circuit and Family Court of Australia Bill 2018; Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 [2018] AUSStaCSBSD 204 (12 September 2018)

• Chapter 1
• Commentary on Bills
• Federal Circuit and Family Court of Australia Bill 2018
• Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018
• Broad delegation of administrative powers2
• Broad delegation of administrative powers4

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Chapter 1

Commentary on Bills

1.1 The committee seeks a response or further information from the relevant minister or sponsor of the bill with respect to the following bills.

Federal Circuit and Family Court of Australia Bill 2018
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018

Purpose	The Federal Circuit and Family Court of Australia Bill 2018 seeks to bring the Family Court of Australia and the Federal Circuit Court of Australia together into an overarching, unified administrative structure to be known as the Federal Circuit and Family Court of Australia[1] The Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 seeks to make the necessary amendments to other Commonwealth Acts and Regulations affected by the passage of the Federal Circuit and Family Court of Australia Bill 2018
Portfolio	Attorney-General
Introduced	House of Representatives on 23 August 2018

Broad delegation of administrative powers^[2]

1.2 Subclause 32(1) of the Federal Circuit and Family Court of Australia Bill 2018 (Principal bill) sets out a process to be followed by the Chief Justice if a complaint is made about another judge of the Federal Circuit and Family Court of Australia (FCFC) (Division 1). Subclause 32(2) provides that the Chief Justice may authorise, in writing, 'a person or a body' to: assist the Chief Justice to handle complaints or a specified complaint; decide whether or not to handle complaints or a specified complaint; dismiss complaints or a specified complaint; or handle complaints or a specified complaint. Subclause 32(3) provides that, to avoid doubt, the Chief Justice may authorise the Deputy Chief Justice or a body that includes the Deputy Chief Justice under subclause 32(2). Clause 113 contains equivalent provisions in relation to the complaint-handling process to be followed by the Chief Judge of the FCFC (Division 2).

1.3 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.

1.4 In this instance, the explanatory memorandum states that subclauses 32(2) and 113(2) seek to give the Chief Justice or Chief Judge discretion as to the categories of persons or bodies which may be authorised to handle a complaint and that this is necessary to ensure a high degree of flexibility for the Chief Justice or Chief Judge as the complaints handling process may involve a wide variety of circumstances.^[3] However, the explanatory memorandum contains no information about the range of persons or bodies it is envisaged the Chief Justice or Chief Judge might authorise to handle complaints and the committee has generally not accepted a desire for administrative flexibility as a sufficient justification for allowing a broad delegation of administrative powers with no specificity as to the qualifications or attributes delegates must possess.

1.5 The committee requests the Attorney-General's advice as to:

• the persons or bodies it is envisaged the Chief Justice and Chief Judge may authorise to handle complaints under subclauses 32(2) and 113(2), and

• the appropriateness of amending the bill to require that, when authorising a person or body to handle complaints, the Chief Justice or Chief Judge be satisfied the person or body has the expertise appropriate to this role.

Broad delegation of administrative powers^[4]

1.6 Clauses 72, 234 and 235 of the Principal bill seek to allow the Sheriff or a Deputy Sheriff of the FCFC (Division 1), and the Marshal or a Deputy Marshal of either division of the FCFC, to authorise persons to assist them in exercising powers or performing functions. Similarly, proposed sections 18PB and 18PE of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 (Consequential bill) provide that the Sheriff or a Deputy Sheriff, and the Marshal or a Deputy Marshal, of the Federal Court of Australia may authorise persons to assist them in exercising powers or performing functions.

1.7 The Principal bill's explanatory memorandum merely restates the effect of clause 72, and states that clauses 234 and 235 replicate the equivalent sections of the Federal Circuit Court of Australia Act 1999.^[5] The Consequential bill's explanatory memorandum states that proposed section 18PB is substantively the same as provisions in the Federal Court of Australia Act 1976, and proposed section 19PE replicates the approach taken to the Marshal and Deputy Marshal positions in the Family Court and Federal Circuit Court.^[6] However, neither explanatory memorandum contains an explanation of why it is considered necessary to allow the Sheriff or a Deputy Sheriff, or the Marshal or a Deputy Marshal, to authorise persons to assist them, nor an explanation of why neither bill confines who may be authorised to assist by reference to any particular expertise or training.

1.8 The committee notes that the Principal bill seeks to give the Sheriff and a Deputy Sheriff of the FCFC the power to use force to enter premises for the purpose of searching the premises for an arrestee or arresting the arrestee, and use force against the arrestee in order to make the arrest,^[7] and that the Sheriff or a Deputy Sheriff of the Federal Court has equivalent powers under the Federal Court of Australia Act 1976.^[8] As the Principal bill and Consequential bill would allow the Sheriff or a Deputy Sheriff to authorise a person to assist in the exercise of these coercive powers, the committee's scrutiny concerns about the absence of any legislative guidance as to who may be authorised to assist are heightened.

1.9 The committee requests the Attorney-General's advice as to:

• why it is necessary to allow the Sheriff or a Deputy Sheriff, and the Marshal or a Deputy Marshal, of both the Federal Circuit and Family Court and the Federal Court to authorise 'any person' to assist in the exercise of powers and performance of functions; and

• whether it would be appropriate to amend the bills to require that any person assisting have the expertise appropriate to the function or power being carried out.

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[1] This bill also contains a standing appropriation under clause 96. The significance of standing appropriations from a scrutiny perspective, and the committee's approach to such provisions, are explained in chapter 3.

[2] Subclauses 32(2) and 113(2) of the Federal Circuit and Family Court of Australia Bill 2018. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(ii).

[3] Explanatory memorandum, pp. 31, 74-75.

[4] Clauses 72, 234 and 235 of the Federal Circuit and Family Court of Australia Bill 2018, and Schedule 1, item 208, proposed sections 18PB and 18PE of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(ii).

[5] Federal Circuit and Family Court of Australia Bill 2018, explanatory memorandum, pp. 54-55, 125.

[6] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, explanatory memorandum, pp. 66-68.

[7] See clause 237.

[8] Federal Court of Australia Act 1976, section 55A.