Second Reading in the House of Representatives of the Access to Justice (Federal Jurisdiction) Amendment Bill 2011

November 24, 2011 |

Yesterday the Minister for Home Affairs introduced the Access to Justice (Federal Jurisdiction) Amendment Bill 2011.

For those in the civil litigation field it will be a significant piece of legislation on the issue of discovery, suppression orders and vexatious litigants.

The Second Reading speech provides:

This government has a proud history of reforms that facilitate access to justice. This bill marks the latest tranche of those reforms.


The bill will implement legislative reforms regarding discovery during Federal Court litigation that were recommended in the Australian Law Reform Commission’s Managing discovery report, tabled in parliament in May 2011.

The Attorney-General initiated that inquiry in May 2010, following the 2009 report by the Attorney-General’s Department’s Access to Justice Taskforce entitled A strategic framework for access to justice in the federal civil justice system. The task force identified the high and sometimes disproportionate costs of discovery as a specific barrier to justice.

The Australian Law Reform Commission made practical recommendations aimed at the Federal Court taking greater control over the discovery process, many of which have already been implemented by the court in its new rules, or are under active consideration by the court. I acknowledge the effort the Federal Court continues to put into refining its case management processes, including those relating to discovery.

The government also welcomes current consideration by the Federal Court and National Judicial College of Australia of how judicial education and training can better equip judges to manage the discovery process.

The two recommendations to be implemented by this bill will give the Federal Court stronger powers to deal with the costs of discovery, and clarify that oral examinations can be used to assist to identify which kinds of documents should be subject to discovery. This will support judges in their role as robust case managers.

I am confident that this package of reforms will give the Federal Court the tools it needs to control discovery more tightly, assisting in the delivery of a more accessible and effective system of civil justice.

Suppression and non-publication orders

The bill will also implement—with some minor variations—the model legislation developed by the then Standing Committee of Attorneys-General on suppression and non-publication orders in the High Court, Federal Court, Family Court and Federal Magistrates Court.

There has been criticism of the volume and breadth of suppression orders granted by some state courts. As a result of these concerns, after extensive consultation, in 2010, the Standing Committee of Attorneys-General developed model legislation on suppression orders.

This bill will implement that model law in relation to the federal courts—in the interests of national consistency and to provide a more robust and comprehensive legislative framework.

The bill has several advantages over the current arrangements for the making of suppression orders in the federal courts:

This bill will provide a more transparent and accountable legislative regime for courts to make suppression orders. By ensuring that courts can only make suppression orders when they are clearly justified—and in as narrow terms as necessary to achieve their purpose—this bill appropriately recognises the fundamental importance that open justice plays in the administration of justice, and ultimately in upholding the rule of law.

Vexatious proceedings

Vexatious litigants have the capacity to absorb an enormous amount of judicial and registry staff’s time, to the detriment of other litigants waiting to have their cases dealt with.

It was for this reason the then Standing Committee of Attorneys-General developed a model law on vexatious proceedings. This law has already been implemented in Queensland, New South Wales and the Northern Territory. This bill will implement the model law in the High Court, Federal Court, Family Court and Federal Magistrates Court.

It is important to bear in mind that a self-represented litigant, or a litigant who has challenging behaviour (perhaps caused by mental illness), is very different from a vexatious litigant. With advice and assistance, many self-represented litigants are often able to adequately formulate and articulate their claims, or to obtain legal representation to enable them to do so. Those with challenging behaviours may be able to obtain professional assistance of another kind. I want to emphasise that these are not the kinds of litigants intended to be addressed by this bill.

Rather, vexatious litigants are those who frequently bring proceedings that are, for example, an abuse of process, designed to annoy others, or have no reasonable grounds.

Although the federal courts already have existing powers to deal with vexatious litigants, these powers are located across various legislation and court rules, and differ in detail. The bill will establish a more comprehensive and consistent legislative regime across all four federal courts.

While an order preventing access to the courts should not be made lightly, where a person has frequently instituted or conducted vexatious proceedings in any Australian court or tribunal, a court will be able to make an order that a person not be able to commence any subsequent proceedings in that court without first obtaining the leave of the court.

The intention is that, once nationally consistent laws are passed, a vexatious litigant will no longer be able to repeatedly initiate proceedings in different courts with hopelessly doomed litigation.

It is essential that court resources are devoted to cases that have merit, and cases which cannot be resolved by other means. The courts need appropriate powers to be able to deal with clearly unmeritorious cases brought by vexatious litigants. This bill will deliver that.

Family law jurisdiction

The bill will also remove the current jurisdictional ceiling on family law magistrates in Western Australia that applies in family law property matters.

This will bring Western Australia’s family law magistrates into line with the family law property jurisdiction which can be exercised by the Federal Magistrates Court in the rest of Australia, and give the Family Court of Western Australia more flexibility in the allocation of cases.

Ensuring that disputes are dealt with at the most appropriate level is an important aspect of access to justice.

Administrative Appeals Tribunal fees

The bill also makes amendments relating to fees in the Administrative Appeals Tribunal. These amendments will serve two purposes.

Firstly, they will allow applicants to make a valid application for review where they do not have the money to pay immediately, but where there is a time limit for making the application.

Secondly, they will allow regulations to be made to prescribe fees to be paid by any party to proceedings. This will allow regulations to be made to give the tribunal the discretion to impose fees on respondent government agencies which unsuccessfully defend tribunal proceedings, unless there were compelling reasons for proceeding to a hearing.

This is intended to provide a financial incentive to promote better primary decision making and early resolution of disputes where possible.

These are both important access to justice measures, aimed at early dispute resolution and ensuring that applicants can access the review of government decisions.


This bill will implement a number of important measures that will improve access to justice in a variety of ways.

The reforms to discovery, family law property jurisdiction and vexatious proceedings aim to ensure that valuable judicial resources are used appropriately, efficiently and effectively: for the benefit of all litigants.

Reforms to suppression orders create a framework that safeguards the public interest in open justice and accountability, reinforcing an important aspect of the administration of justice.

Finally, reforms to fees in the Administrative Appeals Tribunal will facilitate fairer access to the review of government decisions—encouraging better decision making by government agencies and earlier dispute resolution.

All these reforms are consistent with the Strategic Framework for Access to Justice—implemented by this government—designed to facilitate accessible and equitable dispute resolution, at the most appropriate level, delivered through efficient and effective means.

I thank all involved for their work in developing this bill, which is an important part of the government’s ongoing access to justice initiatives.

I commend the bill to the House.


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