A new national structure for the Federal Court of Australia has been proposed by its Chief Justice, Justice James Allsop. The proposal helps drive the transition to a truly national legal profession.
Jurisdiction and the problems of the existing structure
First, by way of recap, created by the Federal Court of Australia Act 1976, the Court began to exercise its jurisdiction on 1 February 1977.
The Federal Court has jurisdiction to hear and determine any matter arising under the Commonwealth Constitution through the operation of s 39B of the Judiciary Act 1903. The Court’s original jurisdiction is conferred by over 150 statutes of the Parliament. The Court hears appeals from decisions of single judges of the Court and from the Federal Circuit Court of Australia in non-family law matters. The Court exercises general appellate jurisdiction in criminal and civil matters on appeal from the Supreme Court of Norfolk Island.
Much of the commercial law of Australia is regulated by Commonwealth legislation: taxation, insurance, intellectual property, bankruptcy, insolvency for example. The Court’s jurisdiction now covers almost all civil matters arising under Australian federal law and some summary and indictable criminal matters. Cases arising under Part IV (restrictive trade practices) and Schedule 2 (the Australian Consumer Law) of the Competition and Consumer Act 2010 constitute a significant part of the workload of the Court. The Court also has a specialist jurisdiction under the Native Title Act 1993 and Admiralty Act 1988.
Historically, there has grown up a lack of cohesiveness and national character to the operation of the Court. The Court’s structure has been based on a state geography, with the business of the Court allocated between different state and territory registries. Each registry takes a different approach to allocation of panels of judges to particular areas, and other procedures.
It is almost 20 years since the introduction of the Docket System, bringing a distinctive character to the operation of the Court. It has entrenched judicial case management by an individual docket judge in most cases. However, it has in some measure failed to bring about a consistency of national practice and a cohesive national framework.
Specialisation is also a challenge for the Court. There has been an apprehension that parties are being obliged to pay for the education of a (skilled and otherwise experienced) judge to a sufficient level of functional skill and knowledge to determine unfamiliar issues in a specialist area of law.
New national practice areas
The national framework is designed to cater for a degree of specialisation by judges, with judges allocated to particular practice areas on a national basis.
The new 8 practice areas would be:
- Administrative, Constitutional Law & Human Rights
- Native Title
- Commercial and Company
- Intellectual Property
- Industrial Relations and Labour
- Admiralty and Maritime
- Criminal Cartel Trials
The national practice sub-areas would include:
- Patents and associated statutes
- Copyright and industrial design
Commercial and company
- Insolvency, corporate and personal bankruptcy
- Regulator and consumer protection
- Competition (anti-trust and access)
- International commercial arbitration
Online Services and Practices
A foundation for these changes are developments within the Court of electronic filing and online services. This permits practitioners from all states and territories to file throughout Australia. Ultimately, the practitioner’s file can be the Court’s file, facilitating the more frequent use of electronic means for the Court’s hearings.
The national court framework should also be a catalyst for a re-examination of the case management procedures adopted by the Court. New centralised practice notes will need to be released to underpin the new framework. This will allow for a simplified and coherent indication of what the Court expects of itself, the parties and the profession in the running of cases, and so facilitate the growth of a truly national court in each of the key practice areas.
The Future and the Australian Legal Profession
The welcome proposals of the Chief Justice should serve to reinforce the advantages for the Australian legal profession of adopting a national framework for the regulation of the market for legal services.
From early 2015 the Legal Profession Uniform Law will change the way the legal profession is regulated – at least in New South Wales and Victoria. The joint participation in the new regulatory scheme was formalised in December 2013 by execution of a Bilateral Agreement between the States of NSW and Victoria. The Uniform Law creates a common legal services market across NSW and Victoria, encompassing almost three quarters of Australia’s lawyers. The scheme aims to harmonise regulatory obligations while retaining local performance of regulatory functions.
A uniform regime has been on the agenda for more than a decade. A truly national profession is a sensible and appropriate response to the proposed changes to our national court.
13 November 2014
Dominique Hogan-Doran is an Australian barrister specialising in commercial litigation, regulatory action and public inquiries.
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