Jurisdiction of Courts Legislation Amendment Act 2002

No. 70, 2002

An Act to amend the law relating to the jurisdiction of courts, and for other purposes

[Assented to 3 September 2002]

The Parliament of Australia enacts:

This Act may be cited as the Jurisdiction of Courts Legislation Amendment Act 2002.

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent	3 September 2002
2. Schedule 1	A single day to be fixed by Proclamation	14 October 2002 (Gazette 2002, No. GN40)
3. Schedule 2	A single day to be fixed by Proclamation, subject to subsection (3)	14 October 2002 (Gazette 2002, No. GN40)

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

(3) If a provision covered by item 3 of the table does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments relating to appeals from the Supreme Court of a Territory

Part 1—Amendments

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.

Judiciary Act 1903

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.

Schedule 2—Amendments relating to the Federal Court of Australia

Part 1—Amendments

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

(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

(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.

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:

47A Testimony by video link, audio link or other appropriate means

(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.

47B Appearances or submissions by video link, audio link or other appropriate means

(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.

47C Conditions for use of video links, audio links or other appropriate means

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;

(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

(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;

(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

(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.

47D Putting documents to a person by video link, audio link or other appropriate means

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.

47E Administration of oaths and affirmations

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.

47F Expenses

(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

(2) Subsection (1) has effect subject to the regulations.

47G New Zealand proceedings

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.

(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.

[Minister’s second reading speech made in—

House of Representatives on 13 March 2002

Senate on 20 August 2002]

(68/02)