Federal Circuit and Family Court of Australia Bill 2018 - Commentary on Ministerial Responses; Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 - Commentary on Ministerial Responses [2018] AUSStaCSBSD 238 (17 October 2018)

• 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 powers5

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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
Bill status	Before the House of Representatives

Broad delegation of administrative powers^[2]

2.49 In Scrutiny Digest 10 of 2018^[3] the committee requested 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) of the Federal Circuit and Family Court of Australia Bill 2018 (Principal bill), and

• the appropriateness of amending the Principal 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.

Attorney-General's response^[4]

2.50 The Attorney-General advised:

The Committee has queried the persons or bodies that the Chief Justice and the Chief Judge may authorise to handle complaints under clauses 32 and 113 of the main Bill, and asked whether it is appropriate that the legislation provide that the Chief Justice or Chief Judge be satisfied the person or body has the expertise appropriate to the role. These clauses and the relevant subclauses reflect existing provisions in the FLA (sections 21B (1B) and (3A)), the FCCA Act (sections 12(3AA) and (3AB)) as well as in the FCA Act (sections 15(1AAA) and (1AAB)).
The Federal Court, the Family Court and the Federal Circuit Court all employ a consistent practice in relation to the authorisation of persons or bodies to handle complaints. In each Court, the respective Chief Justice or Chief Judge has authorised the Deputy Principal Registrar of that Court to assist with the handling of complaints against judges of that Court. In the Family Court, the Chief Justice has also authorised the Deputy Chief Justice to assist with the handling of complaints. The Deputy Principal Registrars are legally qualified, experienced and occupy Senior Executive positions. Each Court has complaint handling strategies, which include the escalation of complaints to the Chief Justice or Deputy Chief Justice, as appropriate.
In the FCFC, I anticipate that the persons authorised to handle complaints would continue to be limited to the Deputy Principal Registrars and the Deputy Chief Justice of the FCFC (Division 1), and would also likely include the Deputy Chief Judge of the FCFC (Division 2). However, and as outlined in the Explanatory Memorandum to the main Bill, having a broad delegation power will allow flexibility in the complaint handling process, which may involve a wide variety of circumstances.
Given that no substantive issues have been raised by the Committee in relation to the current operation of the existing provisions, I am of the view that it is not necessary to make amendments to the main Bill. If it would assist in explaining the operation of clauses 32 and 113 of the main Bill, the Explanatory Memorandum to the main Bill could be amended to provide further clarity about the types of persons who may be authorised to handle complaints.

Committee comment

2.51 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that he anticipates that persons authorised to handle complaints would be limited to Deputy Principal Registrars and the Deputy Chief Justice of the Federal Circuit and Family Court (FCFC) (Division 1), and the Deputy Chief Judge of the FCFC (Division 2), and the advice that Deputy Principal Registrars are legally qualified, experienced, and occupy senior executive positions. The committee also notes the Attorney-General's advice that having a broad power of delegation will allow flexibility in the complaints-handling process, which may involve a wide variety of circumstances.

2.52 The committee further notes the Attorney-General's view that it is not necessary to amend the Principal bill, and his offer to amend the explanatory memorandum to provide further clarity about the types of persons who may be authorised to handle complaints.

2.53 While noting this advice, the committee reiterates that it has generally not accepted administrative flexibility as a sufficient justification for allowing a broad delegation of administrative powers, with no specificity as to the qualifications or attributes that delegates must possess. In this regard, the committee remains concerned that while it may be intended only to authorise appropriately qualified senior executive and judicial officers to handle complaints, there does not appear to be anything on the face of the Principal bill requiring that only such persons be authorised. There also does not appear to be anything in the bill that would require that persons authorised to handle complaints possess appropriate expertise.

2.54 The committee considers that it would be appropriate for the Federal Circuit and Family Court of Australia Bill 2018 to be amended to require the Chief Justice (Division 1) and the Chief Judge (Division 2) of the Federal Circuit and Family Court to be satisfied that persons authorised to handle complaints possess appropriate expertise.

2.55 The committee requests that the key information provided by the Attorney-General be included in the explanatory memorandum to the Federal Circuit and Family Court of Australia Bill 2018, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.56 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of allowing the Chief Justice (Division 1) and the Chief Judge (Division 2) of the Federal Circuit and Family Court to authorise 'a person or body' to handle complaints, with no requirements as to the person's or body's expertise.

Broad delegation of administrative powers^[5]

2.57 In Scrutiny Digest 10 of 2018^[6] the committee requested 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.

Attorney-General's response^[7]

2.58 The Attorney-General advised:

The Committee has queried the rationale underpinning clauses 72, 234 and 235 of the main Bill and proposed sections 18PB and 18PE of the FCA Act, and the appropriateness of confining the powers in those provisions to persons with expertise appropriate to the function or power being carried out.
These provisions would allow the Sheriff, the Deputy Sheriff, the Marshal and the Deputy Marshal of the FCFC (Division 1), the FCFC (Division 2) and the Federal Court to authorise any person to assist in exercising powers or performing functions. These provisions are modelled on existing provisions in the FLA (section 38P(4)), the FCCA Act (sections 108 and 111) and the FCA Act (section 18P(4)).
Those persons currently authorised to provide such assistance within the Family Court, the Federal Circuit Court and the Federal Court are State and Territory Sheriff's officers. These officers execute the Courts' orders in relation to civil enforcement matters. As such, they execute civil enforcement warrants to seize and sell property or take vacant possession of property in strict accordance with the order issued by the respective Court. State and Territory Sheriff's officers perform the same duties in relation to enforcement orders issued by State and Territory Courts, are trained in accordance with State and Territory requirements and are generally uniformed and carry photo identity cards. Where violence is anticipated, authorised officers seek assistance of local police and do not arrest people in connection with this type of process.
It is essential that there is provision for such authorisation. State and Territory Sheriff's officers assist the federal courts, which do not have personnel with the necessary training and powers to undertake such duties. In the FCFC and the Federal Court, the persons authorised under the provisions would continue to be limited to State and Territory Sheriff's officers.
Given that no substantive issues have been raised by the Committee in relation to the current operation of the existing provisions, I am of the view that it is not necessary to make amendments to the proposed clauses and provisions of the main Bill and consequential Bill. However, if it would assist in explaining the operation of the proposed clauses and provisions, the Explanatory Memorandums accompanying the Bills could be amended to provide further clarity on the types of persons who may be authorised under the relevant provisions.

Committee comment

2.59 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that the persons authorised to assist the Sheriff, Deputy Sheriff, Marshall or Deputy Marshall of the FCFC or the Federal Court would be limited to State and Territory Sheriff's officers. The committee notes the advice that these officers are trained in accordance with State and Territory requirements, are generally uniformed and carry identity cards. The committee also notes the Attorney-General's advice that it is essential that there is provision to authorise State and Territory Sheriff's officers to assist officers of the federal courts, as these courts do not have personnel with the necessary training and powers to perform the relevant functions.

2.60 The committee further notes the Attorney-General's view that it is not necessary to amend either the Principal bill or the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, and his offer to amend the explanatory memoranda accompanying the bills to provide further clarity about the types of persons who may be authorised to assist officers of the federal courts in performing their functions.

2.61 The committee appreciates that it may be necessary to authorise State and Territory Sheriff's officers to assist officers of the federal courts. However, the committee notes that the Attorney-General's response does not address why it is necessary or appropriate to authorise 'any person' to provide assistance. In this regard, the committee is also concerned that while it may be intended only to authorise State and Territory Sheriff's officers to assist officers of the federal courts in the performance of their functions, there does not appear to be anything on the face of the bills requiring that only such persons be authorised. There also does not appear to be anything in the bills that would require that persons authorised to assist federal court officers possess appropriate expertise.

2.62 As outlined in its initial comments on the bills, the committee's concerns in this regard are heightened by the fact that persons authorised to assist officers of the federal courts may participate in the exercise of relatively significant coercive powers, including powers of arrest, search and entry.

2.63 The committee considers that it would be appropriate for the bills to be amended to require that the Sheriff, Deputy Sheriff, Marshall or Deputy Marshall of the Federal Circuit and Family Court and the Federal Court to be satisfied that persons authorised to assist those officers in the performance of their functions possess appropriate expertise.

2.64 The committee requests that the key information provided by the Attorney-General be included in the explanatory memoranda, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.65 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of allowing the Sheriff, Deputy Sheriff, Marshall or Deputy Marshall of both the Federal Circuit and Family Court and the Federal Court to authorise 'any person' to assist in the performance of those officers' functions, with no requirements as to the person's expertise.

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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] Senate Scrutiny of Bills Committee, Scrutiny Digest 10 of 2018, at pp. 1-4.

[4] The Attorney-General responded to the committee's comments in a letter 4 October 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 12 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest

[5] 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).

[6] Senate Scrutiny of Bills Committee, Scrutiny Digest 10 of 2018, at pp. 1-4.

[7] The Attorney-General responded to the committee's comments in a letter 4 October 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 12 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest