ACCESS TO JUSTICE (FEDERAL JURISDICTION) AMENDMENT BILL 2011

i Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Discovery

Federal Court of Australia Act 1976

Schedule 2--Suppression and non-publication orders

Part 1--Main amendments

Family Law Act 1975

Federal Court of Australia Act 1976

Federal Magistrates Act 1999

Judiciary Act 1903

Part 2--Consequential amendments

Australian Crime Commission Act 2002

Part 3--Application, saving and transitional provisions

Schedule 3--Vexatious proceedings

Part 1--Amendments

Family Law Act 1975

Federal Court of Australia Act 1976

Federal Magistrates Act 1999

Judiciary Act 1903

Part 2--Application and saving provisions

Schedule 4--Transfer of proceedings from courts of summary

jurisdiction

Family Law Act 1975

Schedule 5--Administrative Appeals Tribunal fees

Administrative Appeals Tribunal Act 1975

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 1

A Bill for an Act to amend the law relating to

courts and tribunals, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Access to Justice (Federal

Jurisdiction) Amendment Act 2011.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

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 this Act receives the Royal Assent.

2. Schedules 1

and 2

The day after this Act receives the Royal

Assent.

3. Schedule 3

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

4. Schedule 4

The day after this Act receives the Royal

Assent.

5. Schedule 5

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

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.

Discovery Schedule 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 3

Schedule 1--Discovery

Federal Court of Australia Act 1976

1 Section 4 (at the end of the definition of proceeding)

Add:

Example: Discovery is an example of an incidental proceeding.

2 After paragraph 43(3)(g)

Insert:

; (h) do any of the following in proceedings in relation to

discovery:

(i) order the party requesting discovery to pay in advance

for some or all of the estimated costs of discovery;

(ii) order the party requesting discovery to give security for

the payment of the cost of discovery;

(iii) make an order specifying the maximum cost that may

be recovered for giving discovery or taking inspection.

3 At the end of section 46

Add:

Note:

Proceedings include incidental proceedings, such as discovery (see the

definition of proceeding in section 4).

4 Application of amendments

The amendments of the Federal Court of Australia Act 1976 made by

this Schedule apply in relation to proceedings in the Federal Court of

Australia:

(a) that are instituted in, or transferred to, that court on or after

the commencement of this Schedule; or

(b) that are pending in that court immediately before that

commencement.

Schedule 2 Suppression and non-publication orders

Part 1 Main amendments

4 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

Schedule 2--Suppression and

non-publication orders

Part 1--Main amendments

Family Law Act 1975

1 After Part XI

Insert:

Part XIA--Suppression and non-publication orders

Division 1--Preliminary

102P Definitions

In this Part:

information includes any document.

news publisher means a person engaged in the business of

publishing news or a public or community broadcasting service

engaged in the publishing of news through a public news medium.

non-publication order means an order that prohibits or restricts the

publication of information (but that does not otherwise prohibit or

restrict the disclosure of information).

party to proceedings includes the complainant or victim (or alleged

victim) in criminal proceedings and any person named in evidence

given in proceedings and, in relation to proceedings that have

concluded, means a person who was a party to the proceedings

before the proceedings concluded.

publish means disseminate or provide access to the public or a

section of the public by any means, including by:

(a) publication in a book, newspaper, magazine or other written

publication; or

(b) broadcast by radio or television; or

(c)

public

exhibition;

Suppression and non-publication orders Schedule 2

Main amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 5

(d) broadcast or publication by means of the internet.

suppression order means an order that prohibits or restricts the

disclosure of information (by publication or otherwise).

102PA Powers of a court not affected

This Part does not limit or otherwise affect any powers that a court

has apart from this Part to regulate its proceedings or to deal with a

contempt of the court.

102PB Other laws not affected

This Part does not limit or otherwise affect the operation of a

provision made by or under any Act (other than this Act) that

prohibits or restricts, or authorises a court to prohibit or restrict, the

publication or other disclosure of information in connection with

proceedings.

102PC Relationship with section 121

This Part and section 121 do not limit each other.

Division 2--Suppression and non-publication orders

102PD Safeguarding public interest in open justice

In deciding whether to make a suppression order or

non-publication order, the court concerned must take into account

that a primary objective of the administration of justice is to

safeguard the public interest in open justice.

102PE Power to make orders

(1) A court exercising jurisdiction in proceedings under this Act may,

by making a suppression order or non-publication order on grounds

permitted by this Part, prohibit or restrict the publication or other

disclosure of:

(a) information tending to reveal the identity of or otherwise

concerning any party to or witness in the proceedings or any

person who is related to or otherwise associated with any

party to or witness in the proceedings; or

Schedule 2 Suppression and non-publication orders

Part 1 Main amendments

6 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

(b) information that relates to the proceedings and is:

(i) information that comprises evidence or information

about evidence; or

(ii) information obtained by the process of discovery; or

(iii) information produced under a subpoena; or

(iv) information lodged with or filed in the court.

(2) The court may make such orders as it thinks appropriate to give

effect to an order under subsection (1).

102PF Grounds for making an order

(1) The court may make a suppression order or non-publication order

on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper

administration of justice;

(b) the order is necessary to prevent prejudice to the interests of

the Commonwealth or a State or Territory in relation to

national or international security;

(d) the order is necessary to avoid causing undue distress or

embarrassment to a party to or witness in criminal

proceedings involving an offence of a sexual nature

(including an act of indecency).

(2) A suppression order or non-publication order must specify the

ground or grounds on which the order is made.

102PG Procedure for making an order

(1) The court may make a suppression order or non-publication order

on its own initiative or on the application of:

(a) a party to the proceedings concerned; or

(b) any other person considered by the court to have a sufficient

interest in the making of the order.

(2) Each of the following persons is entitled to appear and be heard by

the court on an application for a suppression order or

non-publication order:

(a) the applicant for the order;

(b) a party to the proceedings concerned;

Suppression and non-publication orders Schedule 2

Main amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 7

Commonwealth or a State or Territory;

(d) a news publisher;

(e) any other person who, in the court's opinion, has a sufficient

interest in the question of whether a suppression order or

non-publication order should be made.

(3) A suppression order or non-publication order may be made at any

time during proceedings or after proceedings have concluded.

(4) A suppression order or non-publication order may be made subject

to such exceptions and conditions as the court thinks fit and

specifies in the order.

(5) A suppression order or non-publication order must specify the

information to which the order applies with sufficient particularity

to ensure that the court order is limited to achieving the purpose for

which the order is made.

102PH Interim orders

(1) If an application is made to the court for a suppression order or

non-publication order, the court may, without determining the

merits of the application, make the order as an interim order to

have effect, subject to revocation by the court, until the application

is determined.

(2) If an order is made as an interim order, the court must determine

the application as a matter of urgency.

102PI Duration of orders

(1) A suppression order or non-publication order operates for the

period decided by the court and specified in the order.

(2) In deciding the period for which an order is to operate, the court is

to ensure that the order operates for no longer than is reasonably

necessary to achieve the purpose for which it is made.

(3) The period for which an order operates may be specified by

reference to a fixed or ascertainable period or by reference to the

occurrence of a specified future event.

Schedule 2 Suppression and non-publication orders

Part 1 Main amendments

8 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

102PJ Exception for court officials

A suppression order does not prevent a person from disclosing

information if the disclosure is not by publication and is in the

course of performing functions or duties or exercising powers in a

public official capacity:

(a) in connection with the conduct of proceedings or the

recovery or enforcement of any penalty imposed in

proceedings; or

(b) in compliance with any procedure adopted by the court for

informing a news publisher of the existence and content of a

suppression order or non-publication order made by the

court.

102PK Contravention of order

(1) A person commits an offence if:

(a) the person does an act or omits to do an act; and

(b) the act or omission contravenes an order made by a court

under section 102PE.

Penalty: Imprisonment for 12 months, 60 penalty units or both.

(2) An act or omission that constitutes an offence under this section

may be punished as a contempt of court even though it could be

punished as an offence.

(3) An act or omission that constitutes an offence under this section

may be punished as an offence even though it could be punished as

a contempt of court.

(4) If an act or omission constitutes both an offence under this section

and a contempt of court, the offender is not liable to be punished

twice.

(5) Part XIIIA does not apply in relation to a contravention of an order

made by a court under section 102PE.

Federal Court of Australia Act 1976

2 Subsection 23HC(1) (note)

Repeal the note, substitute:

Suppression and non-publication orders Schedule 2

Main amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 9

Note:

Part VAA deals with suppression and non-publication orders.

3 At the end of subsection 24(1D)

Add:

; (c) an order made by the Court under section 37AF;

(d) an order made by the Federal Magistrates Court under

section 88F of the Federal Magistrates Act 1999.

4 After Part V

Insert:

Part VAA--Suppression and non-publication

orders

Division 1--Preliminary

37AA Definitions

In this Part:

information includes any document.

news publisher means a person engaged in the business of

publishing news or a public or community broadcasting service

engaged in the publishing of news through a public news medium.

non-publication order means an order that prohibits or restricts the

publication of information (but that does not otherwise prohibit or

restrict the disclosure of information).

party to a proceeding includes the complainant or victim (or

alleged victim) in a criminal proceeding and any person named in

evidence given in a proceeding and, in relation to a proceeding that

has concluded, means a person who was a party to the proceeding

before the proceeding concluded.

publish means disseminate or provide access to the public or a

section of the public by any means, including by:

(a) publication in a book, newspaper, magazine or other written

publication; or

(b) broadcast by radio or television; or

Schedule 2 Suppression and non-publication orders

Part 1 Main amendments

10 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

(c)

public

exhibition;

(d) broadcast or publication by means of the internet.

suppression order means an order that prohibits or restricts the

disclosure of information (by publication or otherwise).

37AB Powers of the Court not affected

This Part does not limit or otherwise affect any powers that the

Court has apart from this Part to regulate its proceedings or to deal

with a contempt of the Court.

37AC Other laws not affected

This Part does not limit or otherwise affect the operation of a

provision made by or under any Act (other than this Act) that

prohibits or restricts, or authorises a court to prohibit or restrict, the

publication or other disclosure of information in connection with

proceedings.

37AD No limit on section 23HC

This Part does not limit section 23HC (about protecting witnesses).

Division 2--Suppression and non-publication orders

37AE Safeguarding public interest in open justice

In deciding whether to make a suppression order or

non-publication order, the Court must take into account that a

primary objective of the administration of justice is to safeguard

the public interest in open justice.

37AF Power to make orders

(1) The Court may, by making a suppression order or non-publication

order on grounds permitted by this Part, prohibit or restrict the

publication or other disclosure of:

(a) information tending to reveal the identity of or otherwise

concerning any party to or witness in a proceeding before the

Court or any person who is related to or otherwise associated

Suppression and non-publication orders Schedule 2

Main amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 11

with any party to or witness in a proceeding before the Court;

(b) information that relates to a proceeding before the Court and

is:

(i) information that comprises evidence or information

about evidence; or

(ii) information obtained by the process of discovery; or

(iii) information produced under a subpoena; or

(iv) information lodged with or filed in the Court.

(2) The Court may make such orders as it thinks appropriate to give

effect to an order under subsection (1).

37AG Grounds for making an order

(1) The Court may make a suppression order or non-publication order

on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper

administration of justice;

(b) the order is necessary to prevent prejudice to the interests of

the Commonwealth or a State or Territory in relation to

national or international security;

(d) the order is necessary to avoid causing undue distress or

embarrassment to a party to or witness in a criminal

proceeding involving an offence of a sexual nature (including

an act of indecency).

(2) A suppression order or non-publication order must specify the

ground or grounds on which the order is made.

37AH Procedure for making an order

(1) The Court may make a suppression order or non-publication order

on its own initiative or on the application of:

(a) a party to the proceeding concerned; or

(b) any other person considered by the Court to have a sufficient

interest in the making of the order.

Schedule 2 Suppression and non-publication orders

Part 1 Main amendments

12 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

(2) Each of the following persons is entitled to appear and be heard by

the Court on an application for a suppression order or

non-publication order:

(a) the applicant for the order;

(b) a party to the proceeding concerned;

Commonwealth or a State or Territory;

(d) a news publisher;

(e) any other person who, in the Court's opinion, has a sufficient

interest in the question of whether a suppression order or

non-publication order should be made.

(3) A suppression order or non-publication order may be made at any

time during a proceeding or after a proceeding has concluded.

(4) A suppression order or non-publication order may be made subject

to such exceptions and conditions as the Court thinks fit and

specifies in the order.

(5) A suppression order or non-publication order must specify the

information to which the order applies with sufficient particularity

to ensure that the court order is limited to achieving the purpose for

which the order is made.

37AI Interim orders

(1) If an application is made to the Court for a suppression order or

non-publication order, the Court may, without determining the

merits of the application, make the order as an interim order to

have effect, subject to revocation by the Court, until the application

is determined.

(2) If an order is made as an interim order, the Court must determine

the application as a matter of urgency.

37AJ Duration of orders

(1) A suppression order or non-publication order operates for the

period decided by the Court and specified in the order.

(2) In deciding the period for which an order is to operate, the Court is

to ensure that the order operates for no longer than is reasonably

necessary to achieve the purpose for which it is made.

Suppression and non-publication orders Schedule 2

Main amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 13

(3) The period for which an order operates may be specified by

reference to a fixed or ascertainable period or by reference to the

occurrence of a specified future event.

37AK Exception for court officials

A suppression order does not prevent a person from disclosing

information if the disclosure is not by publication and is in the

course of performing functions or duties or exercising powers in a

public official capacity:

(a) in connection with the conduct of a proceeding or the

recovery or enforcement of any penalty imposed in a

proceeding; or

(b) in compliance with any procedure adopted by the Court for

informing a news publisher of the existence and content of a

suppression order or non-publication order made by the

Court.

37AL Contravention of order

(1) A person commits an offence if:

(a) the person does an act or omits to do an act; and

(b) the act or omission contravenes an order made by the Court

under section 37AF.

Penalty: Imprisonment for 12 months, 60 penalty units or both.

(2) An act or omission that constitutes an offence under this section

may be punished as a contempt of court even though it could be

punished as an offence.

(3) An act or omission that constitutes an offence under this section

may be punished as an offence even though it could be punished as

a contempt of court.

(4) If an act or omission constitutes both an offence under this section

and a contempt of court, the offender is not liable to be punished

twice.

5 Section 50

Repeal the section.

Schedule 2 Suppression and non-publication orders

Part 1 Main amendments

14 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

Federal Magistrates Act 1999

6 Section 61

Repeal the section.

7 After Part 6

Insert:

Part 6A--Suppression and non-publication orders

Division 1--Preliminary

88A Definitions

In this Part:

information includes any document.

news publisher means a person engaged in the business of

publishing news or a public or community broadcasting service

engaged in the publishing of news through a public news medium.

non-publication order means an order that prohibits or restricts the

publication of information (but that does not otherwise prohibit or

restrict the disclosure of information).

party to a proceeding includes the complainant or victim (or

alleged victim) in a criminal proceeding and any person named in

evidence given in a proceeding and, in relation to a proceeding that

has concluded, means a person who was a party to the proceeding

before the proceeding concluded.

publish means disseminate or provide access to the public or a

section of the public by any means, including by:

(a) publication in a book, newspaper, magazine or other written

publication; or

(b) broadcast by radio or television; or

(c)

public

exhibition;

(d) broadcast or publication by means of the internet.

Suppression and non-publication orders Schedule 2

Main amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 15

suppression order means an order that prohibits or restricts the

disclosure of information (by publication or otherwise).

88B Powers of Federal Magistrates Court not affected

This Part does not limit or otherwise affect any powers that the

Federal Magistrates Court has apart from this Part to regulate its

proceedings or to deal with a contempt of the Federal Magistrates

Court.

88C Other laws not affected

This Part does not limit or otherwise affect the operation of a

provision made by or under any Act (other than this Act) that

prohibits or restricts, or authorises a court to prohibit or restrict, the

publication or other disclosure of information in connection with

proceedings.

88D This Part does not apply to proceedings under the Family Law

Act 1975

This Part applies to proceedings in the Federal Magistrates Court

other than proceedings under the Family Law Act 1975.

Note:

Part XIA of the Family Law Act 1975 deals with suppression and

non-publication orders in proceedings under that Act.

Division 2--Suppression and non-publication orders

88E Safeguarding public interest in open justice

In deciding whether to make a suppression order or

non-publication order, the Federal Magistrates Court must take into

account that a primary objective of the administration of justice is

to safeguard the public interest in open justice.

88F Power to make orders

(1) The Federal Magistrates Court may, by making a suppression order

or non-publication order on grounds permitted by this Part, prohibit

or restrict the publication or other disclosure of:

(a) information tending to reveal the identity of or otherwise

concerning any party to or witness in a proceeding before the

Schedule 2 Suppression and non-publication orders

Part 1 Main amendments

16 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

Federal Magistrates Court or any person who is related to or

otherwise associated with any party to or witness in a

proceeding before the Federal Magistrates Court; or

(b) information that relates to a proceeding before the Federal

Magistrates Court and is:

(i) information that comprises evidence or information

about evidence; or

(ii) information obtained by the process of discovery; or

(iii) information produced under a subpoena; or

(iv) information lodged with or filed in the Federal

Magistrates Court.

(2) The Federal Magistrates Court may make such orders as it thinks

appropriate to give effect to an order under subsection (1).

88G Grounds for making an order

(1) The Federal Magistrates Court may make a suppression order or

non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper

administration of justice;

(b) the order is necessary to prevent prejudice to the interests of

the Commonwealth or a State or Territory in relation to

national or international security;

(d) the order is necessary to avoid causing undue distress or

embarrassment to a party to or witness in a criminal

proceeding involving an offence of a sexual nature (including

an act of indecency).

(2) A suppression order or non-publication order must specify the

ground or grounds on which the order is made.

88H Procedure for making an order

(1) The Federal Magistrates Court may make a suppression order or

non-publication order on its own initiative or on the application of:

(a) a party to the proceeding concerned; or

(b) any other person considered by the Federal Magistrates Court

to have a sufficient interest in the making of the order.

Suppression and non-publication orders Schedule 2

Main amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 17

(2) Each of the following persons is entitled to appear and be heard by

the Federal Magistrates Court on an application for a suppression

order or non-publication order:

(a) the applicant for the order;

(b) a party to the proceeding concerned;

Commonwealth or a State or Territory;

(d) a news publisher;

(e) any other person who, in the Federal Magistrates Court's

opinion, has a sufficient interest in the question of whether a

suppression order or non-publication order should be made.

(3) A suppression order or non-publication order may be made at any

time during a proceeding or after a proceeding has concluded.

(4) A suppression order or non-publication order may be made subject

to such exceptions and conditions as the Federal Magistrates Court

thinks fit and specifies in the order.

(5) A suppression order or non-publication order must specify the

information to which the order applies with sufficient particularity

to ensure that the court order is limited to achieving the purpose for

which the order is made.

88J Interim orders

(1) If an application is made to the Federal Magistrates Court for a

suppression order or non-publication order, the Federal Magistrates

Court may, without determining the merits of the application, make

the order as an interim order to have effect, subject to revocation

by the Federal Magistrates Court, until the application is

determined.

(2) If an order is made as an interim order, the Federal Magistrates

Court must determine the application as a matter of urgency.

88K Duration of orders

(1) A suppression order or non-publication order operates for the

period decided by the Federal Magistrates Court and specified in

the order.

Schedule 2 Suppression and non-publication orders

Part 1 Main amendments

18 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

(2) In deciding the period for which an order is to operate, the Federal

Magistrates Court is to ensure that the order operates for no longer

than is reasonably necessary to achieve the purpose for which it is

made.

(3) The period for which an order operates may be specified by

reference to a fixed or ascertainable period or by reference to the

occurrence of a specified future event.

88L Exception for court officials

A suppression order does not prevent a person from disclosing

information if the disclosure is not by publication and is in the

course of performing functions or duties or exercising powers in a

public official capacity:

(a) in connection with the conduct of a proceeding or the

recovery or enforcement of any penalty imposed in a

proceeding; or

(b) in compliance with any procedure adopted by the Federal

Magistrates Court for informing a news publisher of the

existence and content of a suppression order or

non-publication order made by the Federal Magistrates

Court.

88M Contravention of order

(1) A person commits an offence if:

(a) the person does an act or omits to do an act; and

(b) the act or omission contravenes an order made by the Federal

Magistrates Court under section 88F.

Penalty: Imprisonment for 12 months, 60 penalty units or both.

(2) An act or omission that constitutes an offence under this section

may be punished as a contempt of court even though it could be

punished as an offence.

(3) An act or omission that constitutes an offence under this section

may be punished as an offence even though it could be punished as

a contempt of court.

Suppression and non-publication orders Schedule 2

Main amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 19

(4) If an act or omission constitutes both an offence under this section

and a contempt of court, the offender is not liable to be punished

twice.

Judiciary Act 1903

8 After Part XA

Insert:

Part XAA--Suppression and non-publication

orders

Division 1--Preliminary

77RA Definitions

In this Part:

information includes any document.

news publisher means a person engaged in the business of

publishing news or a public or community broadcasting service

engaged in the publishing of news through a public news medium.

non-publication order means an order that prohibits or restricts the

publication of information (but that does not otherwise prohibit or

restrict the disclosure of information).

party to a proceeding includes the complainant or victim (or

alleged victim) in a criminal proceeding and any person named in

evidence given in a proceeding and, in relation to a proceeding that

has concluded, means a person who was a party to the proceeding

before the proceeding concluded.

proceeding means a proceeding in a court, whether between parties

or not, and includes an incidental proceeding in the course of, or in

connection with, a proceeding, and also includes an appeal.

publish means disseminate or provide access to the public or a

section of the public by any means, including by:

(a) publication in a book, newspaper, magazine or other written

publication; or

Schedule 2 Suppression and non-publication orders

Part 1 Main amendments

20 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

(b) broadcast by radio or television; or

(c)

public

exhibition;

(d) broadcast or publication by means of the internet.

suppression order means an order that prohibits or restricts the

disclosure of information (by publication or otherwise).

77RB Powers of High Court not affected

This Part does not limit or otherwise affect any powers that the

High Court has apart from this Part to regulate its proceedings or to

deal with a contempt of the Court.

77RC Other laws not affected

This Part does not limit or otherwise affect the operation of a

provision made by or under any Act (other than this Act) that

prohibits or restricts, or authorises a court to prohibit or restrict, the

publication or other disclosure of information in connection with

proceedings.

Division 2--Suppression and non-publication orders

77RD Safeguarding public interest in open justice

In deciding whether to make a suppression order or

non-publication order, the High Court must take into account that a

primary objective of the administration of justice is to safeguard

the public interest in open justice.

77RE Power to make orders

(1) The High Court may, by making a suppression order or

non-publication order on grounds permitted by this Part, prohibit or

restrict the publication or other disclosure of:

(a) information tending to reveal the identity of or otherwise

concerning any party to or witness in a proceeding before the

Court or any person who is related to or otherwise associated

with any party to or witness in a proceeding before the Court;

(b) information that relates to a proceeding before the Court and

is:

Suppression and non-publication orders Schedule 2

Main amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 21

(i) information that comprises evidence or information

about evidence; or

(ii) information obtained by the process of discovery; or

(iii) information produced under a subpoena; or

(iv) information lodged with or filed in the Court.

(2) The High Court may make such orders as it thinks appropriate to

give effect to an order under subsection (1).

77RF Grounds for making an order

(1) The High Court may make a suppression order or non-publication

order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper

administration of justice;

(b) the order is necessary to prevent prejudice to the interests of

the Commonwealth or a State or Territory in relation to

national or international security;

(d) the order is necessary to avoid causing undue distress or

embarrassment to a party to or witness in a criminal

proceeding involving an offence of a sexual nature (including

an act of indecency).

(2) A suppression order or non-publication order must specify the

ground or grounds on which the order is made.

77RG Procedure for making an order

(1) The High Court may make a suppression order or non-publication

order on its own initiative or on the application of:

(a) a party to the proceeding concerned; or

(b) any other person considered by the Court to have a sufficient

interest in the making of the order.

(2) Each of the following persons is entitled to appear and be heard by

the High Court on an application for a suppression order or

non-publication order:

(a) the applicant for the order;

(b) a party to the proceeding concerned;

Schedule 2 Suppression and non-publication orders

Part 1 Main amendments

22 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

Commonwealth or a State or Territory;

(d) a news publisher;

(e) any other person who, in the Court's opinion, has a sufficient

interest in the question of whether a suppression order or

non-publication order should be made.

(3) A suppression order or non-publication order may be made at any

time during a proceeding or after a proceeding has concluded.

(4) A suppression order or non-publication order may be made subject

to such exceptions and conditions as the High Court thinks fit and

specifies in the order.

(5) A suppression order or non-publication order must specify the

information to which the order applies with sufficient particularity

to ensure that the court order is limited to achieving the purpose for

which the order is made.

77RH Interim orders

(1) If an application is made to the High Court for a suppression order

or non-publication order, the Court may, without determining the

merits of the application, make the order as an interim order to

have effect, subject to revocation by the Court, until the application

is determined.

(2) If an order is made as an interim order, the High Court must

determine the application as a matter of urgency.

77RI Duration of orders

(1) A suppression order or non-publication order operates for the

period decided by the High Court and specified in the order.

(2) In deciding the period for which an order is to operate, the High

Court is to ensure that the order operates for no longer than is

reasonably necessary to achieve the purpose for which it is made.

(3) The period for which an order operates may be specified by

reference to a fixed or ascertainable period or by reference to the

occurrence of a specified future event.

Suppression and non-publication orders Schedule 2

Main amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 23

77RJ Exception for court officials

A suppression order does not prevent a person from disclosing

information if the disclosure is not by publication and is in the

course of performing functions or duties or exercising powers in a

public official capacity:

(a) in connection with the conduct of a proceeding or the

recovery or enforcement of any penalty imposed in a

proceeding; or

(b) in compliance with any procedure adopted by the High Court

for informing a news publisher of the existence and content

of a suppression order or non-publication order made by the

Court.

77RK Contravention of order

(1) A person commits an offence if:

(a) the person does an act or omits to do an act; and

(b) the act or omission contravenes an order made by the High

Court under section 77RE.

Penalty: Imprisonment for 12 months, 60 penalty units or both.

(2) An act or omission that constitutes an offence under this section

may be punished as a contempt of court even though it could be

punished as an offence.

(3) An act or omission that constitutes an offence under this section

may be punished as an offence even though it could be punished as

a contempt of court.

(4) If an act or omission constitutes both an offence under this section

and a contempt of court, the offender is not liable to be punished

twice.

Schedule 2 Suppression and non-publication orders

Part 2 Consequential amendments

24 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

Part 2--Consequential amendments

Australian Crime Commission Act 2002

9 Schedule 1

Omit:

Federal Court of Australia Act 1976, section 50

Federal Magistrates Act 1999, section 61

substitute:

Family Law Act 1975, Part XIA

Federal Court of Australia Act 1976, Part VAA

Federal Magistrates Act 1999, Part 6A

10 Schedule 1

After:

Inspector-General of Taxation Act 2003, section 37

insert:

Judiciary Act 1903, Part XAA

Suppression and non-publication orders Schedule 2

Application, saving and transitional provisions Part 3

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 25

Part 3--Application, saving and transitional

provisions

11 Application of amendments

The amendments made by Part 1 apply in relation to proceedings

(including interlocutory proceedings):

(a) that are instituted in, or transferred to, a court on or after the

commencement of that Part; or

(b) that are pending in a court immediately before that

commencement.

12 Saving--proceedings already heard

(1)

Despite the amendment made by item 5, section 50 of the Federal

Court of Australia Act 1976, as in force immediately before the

commencement of this item, continues to apply on and after that

commencement in relation to a proceeding heard by the Court before

that commencement.

(2)

Despite the amendment made by item 5, the Federal Court of Australia

Act 1976, as in force immediately before the commencement of this

item, continues to apply on and after that commencement in relation to

an order made under section 50 of that Act before, on or after that

commencement.

(3)

Despite the amendment made by item 6, section 61 of the Federal

Magistrates Act 1999, as in force immediately before the

commencement of this item, continues to apply on and after that

commencement in relation to a proceeding heard by the Federal

Magistrates Court before that commencement.

(4)

Despite the amendment made by item 6, the Federal Magistrates Act

1999, as in force immediately before the commencement of this item,

continues to apply on and after that commencement in relation to an

order made under section 61 of that Act before, on or after that

commencement.

13 Transitional--Australian Crime Commission Act 2002

Schedule 1 to the Australian Crime Commission Act 2002 applies on

and after the commencement of this item:

Schedule 2 Suppression and non-publication orders

Part 3 Application, saving and transitional provisions

26 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

(a) as if a reference in that Schedule to Part VAA of the Federal

Court of Australia Act 1976 included a reference to

section 50 of that Act as in force at any time; and

(b) as if a reference in that Schedule to Part 6A of the Federal

Magistrates Act 1999 included a reference to section 61 of

that Act as in force at any time.

Vexatious proceedings Schedule 3

Amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 27

Schedule 3--Vexatious proceedings

Part 1--Amendments

Family Law Act 1975

1 Subsection 97(1)

Omit "subsections (1A) and (2)", substitute "this Act".

2 Before Part XII

Insert:

Part XIB--Vexatious proceedings

Division 1--Preliminary

102Q Definitions

(1) In this Part:

appropriate court official means:

(a) in relation to the Family Court of Australia--the Chief

Executive Officer or Principal Registrar of the Court; and

(b) in relation to the Federal Magistrates Court--the Chief

Executive Officer of the Court; and

Principal Registrar of the Court; and

(d) in relation to any other court--the chief executive officer or

principal registrar (however described) of the court.

Australian court or tribunal means a court or tribunal of the

Commonwealth, a State or a Territory.

institute, in relation to proceedings, includes:

(a) for civil proceedings--the taking of a step or the making of

an application that may be necessary before proceedings can

be started against a party; and

Schedule 3 Vexatious proceedings

Part 1 Amendments

28 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

(b) for proceedings before a tribunal--the taking of a step or the

making of an application that may be necessary before

proceedings can be started before the tribunal; and

obtaining of a warrant for the arrest of an alleged offender;

and

(d) for civil or criminal proceedings or proceedings before a

tribunal--the taking of a step or the making of an application

that may be necessary to start an appeal in relation to the

proceedings or to a decision made in the course of the

proceedings.

proceedings:

(a) in relation to a court--has the meaning given by subsection

4(1); and

(b) in relation to a tribunal--means a proceeding in the tribunal,

whether between parties or not, and includes an incidental

proceeding in the course of, or in connection with, a

proceeding.

proceedings of a particular type includes:

(a) proceedings in relation to a particular matter; and

(b) proceedings against a particular person.

vexatious proceedings includes:

(a) proceedings that are an abuse of the process of a court or

tribunal; and

(b) proceedings instituted in a court or tribunal to harass or

annoy, to cause delay or detriment, or for another wrongful

purpose; and

without reasonable ground; and

(d) proceedings conducted in a court or tribunal in a way so as to

harass or annoy, cause delay or detriment, or achieve another

wrongful purpose.

vexatious proceedings order means an order made under

subsection 102QB(2).

(2) A reference in this Part to a person acting in concert with another

person in instituting or conducting proceedings does not include a

Vexatious proceedings Schedule 3

Amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 29

reference to a person who is so acting as a lawyer or representative

of the other person.

102QA Powers of a court not affected

This Part does not limit or otherwise affect any powers that a court

has apart from this Part to deal with vexatious proceedings.

Note:

For example, section 118 allows a court to dismiss particular

proceedings if it is satisfied that the proceedings are frivolous or

vexatious.

Division 2--Vexatious proceedings orders

102QB Making vexatious proceedings orders

(1) This section applies if a court exercising jurisdiction in

proceedings under this Act is satisfied:

(a) a person has frequently instituted or conducted vexatious

proceedings in Australian courts or tribunals; or

(b) a person, acting in concert with another person who is subject

to a vexatious proceedings order or who is covered by

paragraph (a), has instituted or conducted vexatious

proceedings in an Australian court or tribunal.

(2) The court may make any or all of the following orders:

(a) an order staying or dismissing all or part of any proceedings

in the court already instituted by the person;

(b) an order prohibiting the person from instituting proceedings,

or proceedings of a particular type, under this Act in a court

having jurisdiction under this Act;

the person.

Note:

Examples of an order under paragraph (c) are an order directing that

the person may only file documents by mail, an order to give security

for costs and an order for costs.

(3) The court may make a vexatious proceedings order on its own

initiative or on the application of any of the following:

(a) the Attorney-General of the Commonwealth or of a State or

Territory;

(b) the appropriate court official;

Schedule 3 Vexatious proceedings

Part 1 Amendments

30 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

conducted vexatious proceedings;

(d) a person who has a sufficient interest in the matter.

(4) The court must not make a vexatious proceedings order in relation

to a person without hearing the person or giving the person an

opportunity of being heard.

(5) An order made under paragraph (2)(a) or (b) is a final order.

(6) For the purposes of subsection (1), the court may have regard to:

(a) proceedings instituted (or attempted to be instituted) or

conducted in any Australian court or tribunal; and

(b) orders made by any Australian court or tribunal; and

Australian court or tribunal (including the person's

compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or

conducted, and orders made, before the commencement of this

section.

102QC Notification of vexatious proceedings orders

(1) A person may request the appropriate court official of a court for a

certificate stating whether a person named in the request is or has

been the subject of a vexatious proceedings order made by the

court.

(2) If a person makes a request under subsection (1) and the person

named in the request is or has been the subject of a vexatious

proceedings order made by the court, the appropriate court official

must issue to the person making the request a certificate:

(a) specifying the date of the order; and

(b) specifying any other information prescribed by the applicable

Rules of Court.

(3) This section is subject to any law of the Commonwealth, or order

of the court, restricting the publication or disclosure of the name of

a party to proceedings in the court.

Note:

Section 155 of the Evidence Act 1995 deals with adducing evidence of

Commonwealth records.

Vexatious proceedings Schedule 3

Amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 31

Division 3--Particular consequences of vexatious

proceedings orders

102QD Proceedings in contravention of vexatious proceedings order

(1) If a person is subject to a vexatious proceedings order prohibiting

the person from instituting proceedings, or proceedings of a

particular type, under this Act in a court having jurisdiction under

this Act:

(a) the person must not institute proceedings, or proceedings of

that type, in the court without the leave of the court under

section 102QG; and

(b) another person must not, acting in concert with the person,

institute proceedings, or proceedings of that type, in the court

without the leave of the court under section 102QG.

(2) If proceedings are instituted in contravention of subsection (1), the

proceedings are stayed.

(3) Without limiting subsection (2), the court may make:

(a) an order declaring proceedings are proceedings to which

subsection (2) applies; and

(b) any other order in relation to the stayed proceedings it

considers appropriate, including an order for costs.

(4) The court may make an order under subsection (3) on its own

initiative or on the application of any of the following:

(a) the Attorney-General of the Commonwealth or of a State or

Territory;

(b) the appropriate court official;

conducted vexatious proceedings;

(d) a person who has a sufficient interest in the matter.

102QE Application for leave to institute proceedings

(1) This section applies to a person (the applicant) who is:

(a) subject to a vexatious proceedings order prohibiting the

person from instituting proceedings, or proceedings of a

particular type, under this Act in a court having jurisdiction

under this Act; or

Schedule 3 Vexatious proceedings

Part 1 Amendments

32 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

(b) acting in concert with another person who is subject to an

order mentioned in paragraph (a).

(2) The applicant may apply to the court for leave to institute

proceedings that are subject to the order.

(3) The applicant must file an affidavit with the application that:

(a) lists all the occasions on which the applicant has applied for

leave under this section; and

(b) lists all other proceedings the applicant has instituted in any

Australian court or tribunal, including proceedings instituted

before the commencement of this section; and

supporting or adverse to the application, that are known to

the applicant.

(4) The applicant must not serve a copy of the application or affidavit

on a person unless an order is made under paragraph 102QG(1)(a).

If the order is made, the applicant must serve the copy in

accordance with the order.

102QF Dismissing application for leave

(1) The court may make an order dismissing an application under

section 102QE for leave to institute proceedings if it considers the

affidavit does not substantially comply with subsection 102QE(3).

(2) The court must make an order dismissing an application under

section 102QE for leave to institute proceedings if it considers the

proceedings are vexatious proceedings.

(3) The court may dismiss the application without an oral hearing

(either with or without the consent of the applicant).

(4) The court may make an order under this section in Chambers.

102QG Granting application for leave

(1) Before the court makes an order granting an application under

section 102QE for leave to institute proceedings, it must:

(a) order that the applicant serve:

(i) the person against whom the applicant proposes to

institute the proceedings; and

Vexatious proceedings Schedule 3

Amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 33

(ii) any other person specified in the order;

with a copy of the application and affidavit and a notice that

the person is entitled to be heard on the application; and

(b) give the applicant and each person described in

subparagraph (a)(i) or (ii), on appearance, an opportunity to

be heard at the hearing of the application.

(2) At the hearing of the application, the court may receive as evidence

any record of evidence given, or affidavit filed, in any proceedings

in any Australian court or tribunal in which the applicant is, or at

any time was, involved either as a party or as a person acting in

concert with a party.

(3) The court may make an order granting the application. The order

may be made subject to the conditions the court considers

appropriate.

(4) The court may grant leave only if it is satisfied the proceedings are

not vexatious proceedings.

3 Section 118

Repeal the section, substitute:

118 Frivolous or vexatious proceedings

The court may, at any stage of proceedings under this Act, if it is

satisfied that the proceedings are frivolous or vexatious:

(a) dismiss the proceedings; and

(b) make such order as to costs as the court considers just.

4 After paragraph 123(1)(d)

Insert:

(e) providing for and in relation to the prevention or termination

of vexatious proceedings; and

Federal Court of Australia Act 1976

5 Subsection 17(1)

Omit "section", substitute "Act".

6 Paragraph 24(1D)(c)

Schedule 3 Vexatious proceedings

Part 1 Amendments

34 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

After "section 37AF", insert ", 37AS or 37AT".

7 Paragraph 24(1D)(d)

After "section 88F", insert ", 88U or 88V".

8 Before Part VA

Insert:

Part VAAA--Vexatious proceedings

Division 1--Preliminary

37AM Definitions

(1) In this Part:

Australian court or tribunal means a court or tribunal of the

Commonwealth, a State or a Territory.

institute, in relation to proceedings, includes:

(a) for civil proceedings--the taking of a step or the making of

an application that may be necessary before proceedings can

be started against a party; and

(b) for proceedings before a tribunal--the taking of a step or the

making of an application that may be necessary before

proceedings can be started before the tribunal; and

obtaining of a warrant for the arrest of an alleged offender;

and

(d) for civil or criminal proceedings or proceedings before a

tribunal--the taking of a step or the making of an application

that may be necessary to start an appeal in relation to the

proceedings or to a decision made in the course of the

proceedings.

proceeding:

(a) in relation to a court--has the meaning given by section 4;

and

(b) in relation to a tribunal--means a proceeding in the tribunal,

whether between parties or not, and includes an incidental

Vexatious proceedings Schedule 3

Amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 35

proceeding in the course of, or in connection with, a

proceeding.

proceedings of a particular type includes:

(a) proceedings in relation to a particular matter; and

(b) proceedings against a particular person.

vexatious proceeding includes:

(a) a proceeding that is an abuse of the process of a court or

tribunal; and

(b) a proceeding instituted in a court or tribunal to harass or

annoy, to cause delay or detriment, or for another wrongful

purpose; and

without reasonable ground; and

(d) a proceeding conducted in a court or tribunal in a way so as

to harass or annoy, cause delay or detriment, or achieve

another wrongful purpose.

vexatious proceedings order means an order made under

subsection 37AO(2).

(2) A reference in this Part to a person acting in concert with another

person in instituting or conducting proceedings does not include a

reference to a person who is so acting as a lawyer or representative

of the other person.

37AN Powers of the Court not affected

This Part does not limit or otherwise affect any powers that the

Court has apart from this Part to deal with vexatious proceedings.

Division 2--Vexatious proceedings orders

37AO Making vexatious proceedings orders

(1) This section applies if the Court is satisfied:

(a) a person has frequently instituted or conducted vexatious

proceedings in Australian courts or tribunals; or

(b) a person, acting in concert with another person who is subject

to a vexatious proceedings order or who is covered by

Schedule 3 Vexatious proceedings

Part 1 Amendments

36 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

paragraph (a), has instituted or conducted a vexatious

proceeding in an Australian court or tribunal.

(2) The Court may make any or all of the following orders:

(a) an order staying or dismissing all or part of any proceedings

in the Court already instituted by the person;

(b) an order prohibiting the person from instituting proceedings,

or proceedings of a particular type, in the Court;

the person.

Note:

Examples of an order under paragraph (c) are an order directing that

the person may only file documents by mail, an order to give security

for costs and an order for costs.

(3) The Court may make a vexatious proceedings order on its own

initiative or on the application of any of the following:

(a) the Attorney-General of the Commonwealth or of a State or

Territory;

(b) the Registrar of the Court;

conducted a vexatious proceeding;

(d) a person who has a sufficient interest in the matter.

(4) The Court must not make a vexatious proceedings order in relation

to a person without hearing the person or giving the person an

opportunity of being heard.

(5) An order made under paragraph (2)(a) or (b) is a final order.

(6) For the purposes of subsection (1), the Court may have regard to:

(a) proceedings instituted (or attempted to be instituted) or

conducted in any Australian court or tribunal; and

(b) orders made by any Australian court or tribunal; and

Australian court or tribunal (including the person's

compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or

conducted, and orders made, before the commencement of this

section.

Vexatious proceedings Schedule 3

Amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 37

37AP Notification of vexatious proceedings orders

(1) A person may request the Registrar of the Court for a certificate

stating whether a person named in the request is or has been the

subject of a vexatious proceedings order.

(2) If a person makes a request under subsection (1) and the person

named in the request is or has been the subject of a vexatious

proceedings order, the Registrar must issue to the person making

the request a certificate:

(a) specifying the date of the order; and

(b) specifying any other information prescribed by the Rules of

Court.

(3) This section is subject to any law of the Commonwealth, or order

of the Court, restricting the publication or disclosure of the name of

a party to proceedings in the Court.

Note:

Section 155 of the Evidence Act 1995 deals with adducing evidence of

Commonwealth records.

Division 3--Particular consequences of vexatious

proceedings orders

37AQ Proceedings in contravention of vexatious proceedings order

(1) If the Court makes a vexatious proceedings order prohibiting a

person from instituting proceedings, or proceedings of a particular

type, in the Court:

(a) the person must not institute proceedings, or proceedings of

that type, in the Court without the leave of the Court under

section 37AT; and

(b) another person must not, acting in concert with the person,

institute proceedings, or proceedings of that type, in the

Court without the leave of the Court under section 37AT.

(2) If a proceeding is instituted in contravention of subsection (1), the

proceeding is stayed.

(3) Without limiting subsection (2), the Court may make:

(a) an order declaring a proceeding is a proceeding to which

subsection (2) applies; and

Schedule 3 Vexatious proceedings

Part 1 Amendments

38 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

(b) any other order in relation to the stayed proceeding it

considers appropriate, including an order for costs.

(4) The Court may make an order under subsection (3) on its own

initiative or on the application of any of the following:

(a) the Attorney-General of the Commonwealth or of a State or

Territory;

(b) the Registrar of the Court;

conducted a vexatious proceeding;

(d) a person who has a sufficient interest in the matter.

37AR Application for leave to institute proceedings

(1) This section applies to a person (the applicant) who is:

(a) subject to a vexatious proceedings order prohibiting the

person from instituting proceedings, or proceedings of a

particular type, in the Court; or

(b) acting in concert with another person who is subject to an

order mentioned in paragraph (a).

(2) The applicant may apply to the Court for leave to institute a

proceeding that is subject to the order.

(3) The applicant must file an affidavit with the application that:

(a) lists all the occasions on which the applicant has applied for

leave under this section; and

(b) lists all other proceedings the applicant has instituted in any

Australian court or tribunal, including proceedings instituted

before the commencement of this section; and

supporting or adverse to the application, that are known to

the applicant.

(4) The applicant must not serve a copy of the application or affidavit

on a person unless an order is made under paragraph 37AT(1)(a). If

the order is made, the applicant must serve the copy in accordance

with the order.

Vexatious proceedings Schedule 3

Amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 39

37AS Dismissing application for leave

(1) The Court or a Judge may make an order dismissing an application

under section 37AR for leave to institute a proceeding if the Court

or Judge considers the affidavit does not substantially comply with

subsection 37AR(3).

(2) The Court or a Judge must make an order dismissing an application

under section 37AR for leave to institute a proceeding if the Court

or Judge considers the proceeding is a vexatious proceeding.

(3) The Court or a Judge may dismiss the application without an oral

hearing (either with or without the consent of the applicant).

37AT Granting application for leave

(1) Before the Court makes an order granting an application under

section 37AR for leave to institute a proceeding, it must:

(a) order that the applicant serve:

(i) the person against whom the applicant proposes to

institute the proceeding; and

(ii) any other person specified in the order;

with a copy of the application and affidavit and a notice that

the person is entitled to be heard on the application; and

(b) give the applicant and each person described in

subparagraph (a)(i) or (ii), on appearance, an opportunity to

be heard at the hearing of the application.

(2) At the hearing of the application, the Court may receive as

evidence any record of evidence given, or affidavit filed, in any

proceeding in any Australian court or tribunal in which the

applicant is, or at any time was, involved either as a party or as a

person acting in concert with a party.

(3) The Court may make an order granting the application. The order

may be made subject to the conditions the Court considers

appropriate.

(4) The Court may grant leave only if it is satisfied the proceeding is

not a vexatious proceeding.

Schedule 3 Vexatious proceedings

Part 1 Amendments

40 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

Federal Magistrates Act 1999

9 Before Part 7

Insert:

Part 6B--Vexatious proceedings

Division 1--Preliminary

88N Definitions

(1) In this Part:

Australian court or tribunal means a court or tribunal of the

Commonwealth, a State or a Territory.

institute, in relation to proceedings, includes:

(a) for civil proceedings--the taking of a step or the making of

an application that may be necessary before proceedings can

be started against a party; and

(b) for proceedings before a tribunal--the taking of a step or the

making of an application that may be necessary before

proceedings can be started before the tribunal; and

obtaining of a warrant for the arrest of an alleged offender;

and

(d) for civil or criminal proceedings or proceedings before a

tribunal--the taking of a step or the making of an application

that may be necessary to start an appeal in relation to the

proceedings or to a decision made in the course of the

proceedings.

proceeding:

(a) in relation to a court--has the meaning given by section 5;

and

(b) in relation to a tribunal--means a proceeding in the tribunal,

whether between parties or not, and includes an incidental

proceeding in the course of, or in connection with, a

proceeding.

proceedings of a particular type includes:

Vexatious proceedings Schedule 3

Amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 41

(a) proceedings in relation to a particular matter; and

(b) proceedings against a particular person.

vexatious proceeding includes:

(a) a proceeding that is an abuse of the process of a court or

tribunal; and

(b) a proceeding instituted in a court or tribunal to harass or

annoy, to cause delay or detriment, or for another wrongful

purpose; and

without reasonable ground; and

(d) a proceeding conducted in a court or tribunal in a way so as

to harass or annoy, cause delay or detriment, or achieve

another wrongful purpose.

vexatious proceedings order means an order made under

subsection 88Q(2).

(2) A reference in this Part to a person acting in concert with another

person in instituting or conducting proceedings does not include a

reference to a person who is so acting as a legal practitioner or

representative of the other person.

88P Powers of the Federal Magistrates Court not affected

This Part does not limit or otherwise affect any powers that the

Federal Magistrates Court has apart from this Part to deal with

vexatious proceedings.

Division 2--Vexatious proceedings orders

88Q Making vexatious proceedings orders

(1) This section applies if the Federal Magistrates Court is satisfied:

(a) a person has frequently instituted or conducted vexatious

proceedings in Australian courts or tribunals; or

(b) a person, acting in concert with another person who is subject

to a vexatious proceedings order or who is covered by

paragraph (a), has instituted or conducted a vexatious

proceeding in an Australian court or tribunal.

Schedule 3 Vexatious proceedings

Part 1 Amendments

42 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

(2) The Federal Magistrates Court may make any or all of the

following orders:

(a) an order staying or dismissing all or part of any proceedings

in the Federal Magistrates Court already instituted by the

person;

(b) an order prohibiting the person from instituting proceedings,

or proceedings of a particular type, in the Federal Magistrates

Court;

appropriate in relation to the person.

Note:

Examples of an order under paragraph (c) are an order directing that

the person may only file documents by mail, an order to give security

for costs and an order for costs.

(3) Subsection (2) applies in relation to proceedings in the Federal

Magistrates Court other than proceedings under the Family Law

Act 1975.

Note:

Part XIB of the Family Law Act 1975 deals with vexatious

proceedings under that Act.

(4) The Federal Magistrates Court may make a vexatious proceedings

order on its own initiative or on the application of any of the

following:

(a) the Attorney-General of the Commonwealth or of a State or

Territory;

(b) the Chief Executive Officer;

conducted a vexatious proceeding;

(d) a person who has a sufficient interest in the matter.

(5) The Federal Magistrates Court must not make a vexatious

proceedings order in relation to a person without hearing the

person or giving the person an opportunity of being heard.

(6) An order made under paragraph (2)(a) or (b) is a final order.

(7) For the purposes of subsection (1), the Federal Magistrates Court

may have regard to:

(a) proceedings instituted (or attempted to be instituted) or

conducted in any Australian court or tribunal; and

(b) orders made by any Australian court or tribunal; and

Vexatious proceedings Schedule 3

Amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 43

Australian court or tribunal (including the person's

compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or

conducted, and orders made, before the commencement of this

section.

88R Notification of vexatious proceedings orders

(1) A person may request the Chief Executive Officer for a certificate

stating whether a person named in the request is or has been the

subject of a vexatious proceedings order.

(2) If a person makes a request under subsection (1) and the person

named in the request is or has been the subject of a vexatious

proceedings order, the Chief Executive Officer must issue to the

person making the request a certificate:

(a) specifying the date of the order; and

(b) specifying any other information prescribed by the Rules of

Court.

(3) This section is subject to any law of the Commonwealth, or order

of the Federal Magistrates Court, restricting the publication or

disclosure of the name of a party to proceedings in the Federal

Magistrates Court.

Note:

Section 155 of the Evidence Act 1995 deals with adducing evidence of

Commonwealth records.

Division 3--Particular consequences of vexatious

proceedings orders

88S Proceedings in contravention of vexatious proceedings order

(1) If the Federal Magistrates Court makes a vexatious proceedings

order prohibiting a person from instituting proceedings, or

proceedings of a particular type, in the Federal Magistrates Court:

(a) the person must not institute proceedings, or proceedings of

that type, in the Federal Magistrates Court without the leave

of the Federal Magistrates Court under section 88V; and

(b) another person must not, acting in concert with the person,

institute proceedings, or proceedings of that type, in the

Schedule 3 Vexatious proceedings

Part 1 Amendments

44 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

Federal Magistrates Court without the leave of the Federal

Magistrates Court under section 88V.

(2) If a proceeding is instituted in contravention of subsection (1), the

proceeding is stayed.

(3) Without limiting subsection (2), the Federal Magistrates Court may

make:

(a) an order declaring a proceeding is a proceeding to which

subsection (2) applies; and

(b) any other order in relation to the stayed proceeding it

considers appropriate, including an order for costs.

(4) The Federal Magistrates Court may make an order under

subsection (3) on its own initiative or on the application of any of

the following:

(a) the Attorney-General of the Commonwealth or of a State or

Territory;

(b) the Chief Executive Officer;

conducted a vexatious proceeding;

(d) a person who has a sufficient interest in the matter.

88T Application for leave to institute proceedings

(1) This section applies to a person (the applicant) who is:

(a) subject to a vexatious proceedings order prohibiting the

person from instituting proceedings, or proceedings of a

particular type, in the Federal Magistrates Court; or

(b) acting in concert with another person who is subject to an

order mentioned in paragraph (a).

(2) The applicant may apply to the Federal Magistrates Court for leave

to institute a proceeding that is subject to the order.

(3) The applicant must file an affidavit with the application that:

(a) lists all the occasions on which the applicant has applied for

leave under this section; and

(b) lists all other proceedings the applicant has instituted in any

Australian court or tribunal, including proceedings instituted

before the commencement of this section; and

Vexatious proceedings Schedule 3

Amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 45

supporting or adverse to the application, that are known to

the applicant.

(4) The applicant must not serve a copy of the application or affidavit

on a person unless an order is made under paragraph 88V(1)(a). If

the order is made, the applicant must serve the copy in accordance

with the order.

88U Dismissing application for leave

(1) The Federal Magistrates Court or a Federal Magistrate may make

an order dismissing an application under section 88T for leave to

institute a proceeding if the Federal Magistrates Court or Federal

Magistrate considers the affidavit does not substantially comply

with subsection 88T(3).

(2) The Federal Magistrates Court or a Federal Magistrate must make

an order dismissing an application under section 88T for leave to

institute a proceeding if the Federal Magistrates Court or Federal

Magistrate considers the proceeding is a vexatious proceeding.

(3) The Federal Magistrates Court or a Federal Magistrate may dismiss

the application without an oral hearing (either with or without the

consent of the applicant).

88V Granting application for leave

(1) Before the Federal Magistrates Court makes an order granting an

application under section 88T for leave to institute a proceeding, it

must:

(a) order that the applicant serve:

(i) the person against whom the applicant proposes to

institute the proceeding; and

(ii) any other person specified in the order;

with a copy of the application and affidavit and a notice that

the person is entitled to be heard on the application; and

(b) give the applicant and each person described in

subparagraph (a)(i) or (ii), on appearance, an opportunity to

be heard at the hearing of the application.

Schedule 3 Vexatious proceedings

Part 1 Amendments

46 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

(2) At the hearing of the application, the Federal Magistrates Court

may receive as evidence any record of evidence given, or affidavit

filed, in any proceeding in any Australian court or tribunal in

which the applicant is, or at any time was, involved either as a

party or as a person acting in concert with a party.

(3) The Federal Magistrates Court may make an order granting the

application. The order may be made subject to the conditions the

Federal Magistrates Court considers appropriate.

(4) The Federal Magistrates Court may grant leave only if it is

satisfied the proceeding is not a vexatious proceeding.

Judiciary Act 1903

10 Before Part XB

Insert:

Part XAB--Vexatious proceedings

Division 1--Preliminary

77RL Definitions

(1) In this Part:

Australian court or tribunal means a court or tribunal of the

Commonwealth, a State or a Territory.

Chief Executive and Principal Registrar means the Chief

Executive and Principal Registrar of the High Court appointed

under section 18 of the High Court of Australia Act 1979.

institute, in relation to proceedings, includes:

(a) for civil proceedings--the taking of a step or the making of

an application that may be necessary before proceedings can

be started against a party; and

(b) for proceedings before a tribunal--the taking of a step or the

making of an application that may be necessary before

proceedings can be started before the tribunal; and

Vexatious proceedings Schedule 3

Amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 47

obtaining of a warrant for the arrest of an alleged offender;

and

(d) for civil or criminal proceedings or proceedings before a

tribunal--the taking of a step or the making of an application

that may be necessary to start an appeal in relation to the

proceedings or to a decision made in the course of the

proceedings.

proceeding:

(a) in relation to a court--means a proceeding in the court,

whether between parties or not, and includes an incidental

proceeding in the course of, or in connection with, a

proceeding, and also includes an appeal; and

(b) in relation to a tribunal--means a proceeding in the tribunal,

whether between parties or not, and includes an incidental

proceeding in the course of, or in connection with, a

proceeding.

proceedings of a particular type includes:

(a) proceedings in relation to a particular matter; and

(b) proceedings against a particular person.

vexatious proceeding includes:

(a) a proceeding that is an abuse of the process of a court or

tribunal; and

(b) a proceeding instituted in a court or tribunal to harass or

annoy, to cause delay or detriment, or for another wrongful

purpose; and

without reasonable ground; and

(d) a proceeding conducted in a court or tribunal in a way so as

to harass or annoy, cause delay or detriment, or achieve

another wrongful purpose.

vexatious proceedings order means an order made under

subsection 77RN(2).

(2) A reference in this Part to a person acting in concert with another

person in instituting or conducting proceedings does not include a

reference to a person who is so acting as a legal practitioner or

representative of the other person.

Schedule 3 Vexatious proceedings

Part 1 Amendments

48 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

77RM Powers of the High Court not affected

This Part does not limit or otherwise affect any powers that the

High Court has apart from this Part to deal with vexatious

proceedings.

Division 2--Vexatious proceedings orders

77RN Making vexatious proceedings orders

(1) This section applies if the High Court is satisfied:

(a) a person has frequently instituted or conducted vexatious

proceedings in Australian courts or tribunals; or

(b) a person, acting in concert with another person who is subject

to a vexatious proceedings order or who is covered by

paragraph (a), has instituted or conducted a vexatious

proceeding in an Australian court or tribunal.

(2) The High Court may make any or all of the following orders:

(a) an order staying or dismissing all or part of any proceedings

in the High Court already instituted by the person;

(b) an order prohibiting the person from instituting proceedings,

or proceedings of a particular type, in the High Court;

relation to the person.

Note:

Examples of an order under paragraph (c) are an order directing that

the person may only file documents by mail, an order to give security

for costs and an order for costs.

(3) The High Court may make a vexatious proceedings order on its

own initiative or on the application of any of the following:

(a) the Attorney-General of the Commonwealth or of a State or

Territory;

(b) the Chief Executive and Principal Registrar;

conducted a vexatious proceeding;

(d) a person who has a sufficient interest in the matter.

(4) The High Court must not make a vexatious proceedings order in

relation to a person without hearing the person or giving the person

an opportunity of being heard.

Vexatious proceedings Schedule 3

Amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 49

(5) An order made under paragraph (2)(a) or (b) is a final order.

(6) For the purposes of subsection (1), the High Court may have regard

to:

(a) proceedings instituted (or attempted to be instituted) or

conducted in any Australian court or tribunal; and

(b) orders made by any Australian court or tribunal; and

Australian court or tribunal (including the person's

compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or

conducted, and orders made, before the commencement of this

section.

77RO Notification of vexatious proceedings orders

(1) A person may request the Chief Executive and Principal Registrar

for a certificate stating whether a person named in the request is or

has been the subject of a vexatious proceedings order.

(2) If a person makes a request under subsection (1) and the person

named in the request is or has been the subject of a vexatious

proceedings order, the Chief Executive and Principal Registrar

must issue to the person making the request a certificate:

(a) specifying the date of the order; and

(b) specifying any other information prescribed by Rules of

Court.

(3) This section is subject to any law of the Commonwealth, or order

of the High Court, restricting the publication or disclosure of the

name of a party to proceedings in the High Court.

Note:

Section 155 of the Evidence Act 1995 deals with adducing evidence of

Commonwealth records.

Schedule 3 Vexatious proceedings

Part 1 Amendments

50 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

Division 3--Particular consequences of vexatious

proceedings orders

77RP Proceedings in contravention of vexatious proceedings order

(1) If the High Court makes a vexatious proceedings order prohibiting

a person from instituting proceedings, or proceedings of a

particular type, in the High Court:

(a) the person must not institute proceedings, or proceedings of

that type, in the High Court without the leave of the High

Court under section 77RS; and

(b) another person must not, acting in concert with the person,

institute proceedings, or proceedings of that type, in the High

Court without the leave of the High Court under

section 77RS.

(2) If a proceeding is instituted in contravention of subsection (1), the

proceeding is stayed.

(3) Without limiting subsection (2), the High Court may make:

(a) an order declaring a proceeding is a proceeding to which

subsection (2) applies; and

(b) any other order in relation to the stayed proceeding it

considers appropriate, including an order for costs.

(4) The High Court may make an order under subsection (3) on its

own initiative or on the application of any of the following:

(a) the Attorney-General of the Commonwealth or of a State or

Territory;

(b) the Chief Executive and Principal Registrar;

conducted a vexatious proceeding;

(d) a person who has a sufficient interest in the matter.

77RQ Application for leave to institute proceedings

(1) This section applies to a person (the applicant) who is:

(a) subject to a vexatious proceedings order prohibiting the

person from instituting proceedings, or proceedings of a

particular type, in the High Court; or

Vexatious proceedings Schedule 3

Amendments Part 1

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 51

(b) acting in concert with another person who is subject to an

order mentioned in paragraph (a).

(2) The applicant may apply to the High Court for leave to institute a

proceeding that is subject to the order.

(3) The applicant must file an affidavit with the application that:

(a) lists all the occasions on which the applicant has applied for

leave under this section; and

(b) lists all other proceedings the applicant has instituted in any

Australian court or tribunal, including proceedings instituted

before the commencement of this section; and

supporting or adverse to the application, that are known to

the applicant.

(4) The applicant must not serve a copy of the application or affidavit

on a person unless an order is made under paragraph 77RS(1)(a). If

the order is made, the applicant must serve the copy in accordance

with the order.

77RR Dismissing application for leave

(1) The High Court, or a Justice sitting in Chambers, may make an

order dismissing an application under section 77RQ for leave to

institute a proceeding if the High Court or Justice considers the

affidavit does not substantially comply with subsection 77RQ(3).

(2) The High Court, or a Justice sitting in Chambers, must make an

order dismissing an application under section 77RQ for leave to

institute a proceeding if the High Court or Justice considers the

proceeding is a vexatious proceeding.

(3) The High Court, or a Justice sitting in Chambers, may dismiss the

application without an oral hearing (either with or without the

consent of the applicant).

77RS Granting application for leave

(1) Before the High Court makes an order granting an application

under section 77RQ for leave to institute a proceeding, it must:

(a) order that the applicant serve:

Schedule 3 Vexatious proceedings

Part 1 Amendments

52 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

(i) the person against whom the applicant proposes to

institute the proceeding; and

(ii) any other person specified in the order;

with a copy of the application and affidavit and a notice that

the person is entitled to be heard on the application; and

(b) give the applicant and each person described in

subparagraph (a)(i) or (ii), on appearance, an opportunity to

be heard at the hearing of the application.

(2) At the hearing of the application, the High Court may receive as

evidence any record of evidence given, or affidavit filed, in any

proceeding in any Australian court or tribunal in which the

applicant is, or at any time was, involved either as a party or as a

person acting in concert with a party.

(3) The High Court may make an order granting the application. The

order may be made subject to the conditions the High Court

considers appropriate.

(4) The High Court may grant leave only if it is satisfied the

proceeding is not a vexatious proceeding.

Vexatious proceedings Schedule 3

Application and saving provisions Part 2

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 53

Part 2--Application and saving provisions

11 Application of amendments

The power of a court to make a vexatious proceedings order under the

Family Law Act 1975, the Federal Court of Australia Act 1976, the

Federal Magistrates Act 1999 or the Judiciary Act 1903, as amended by

this Schedule, applies in relation to proceedings instituted in, or

transferred to, that court on or after the commencement of this item.

12 Saving--pending proceedings etc.

(1)

Despite the amendment made by item 3, section 118 of the Family Law

Act 1975, as in force immediately before the commencement of that

item, continues to apply on and after that commencement in relation to

proceedings that were pending in the court immediately before that

commencement.

(2)

Despite the amendment made by item 3, the Family Law Act 1975, as in

force immediately before the commencement of that item, continues to

apply on and after that commencement in relation to an order made

under paragraph 118(1)(a), (b) or (c) of that Act before, on or after that

commencement.

(3)

Despite the amendments made by this Schedule, rules of court, in

relation to a court, that were in force immediately before the

commencement of this item under the Family Law Act 1975, the

Federal Court of Australia Act 1976, the Federal Magistrates Act 1999

or the Judiciary Act 1903 (to the extent the rules relate to vexatious

proceedings) continue to apply on and after that commencement in

relation to proceedings that were pending in the court immediately

before that commencement.

(4)

The amendments made by this Schedule do not affect the validity of any

orders that were made before the commencement of this item under

rules of court made under the Family Law Act 1975, the Federal Court

of Australia Act 1976, the Federal Magistrates Act 1999 or the

Judiciary Act 1903 (to the extent the rules relate to vexatious

proceedings).

Schedule 4 Transfer of proceedings from courts of summary jurisdiction

54 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

Schedule 4--Transfer of proceedings from

courts of summary jurisdiction

Family Law Act 1975

1 Subsection 46(1)

After "instituted in", insert "or transferred to".

2 Subsection 46(1)

Omit "the ceiling amount", substitute "$20,000".

3 Subsection 46(1)

Omit "by which the proceedings are instituted", substitute "by which

the proceedings were instituted".

4 After subparagraphs 46(1)(a)(i) and (b)(i)

Insert:

(ia) a Family Court of a State; or

5 Subsection 46(1AA)

Repeal the subsection, substitute:

(1AA) Subsection (1) does not apply if the court of summary jurisdiction

is the Magistrates Court of Western Australia constituted by a

Family Law Magistrate of Western Australia.

6 Paragraph 46(1B)(a)

After "instituted in", insert "or transferred to".

7 After paragraph 46(1C)(a)

Insert:

(aa) a Family Court of a State; or

8 After paragraph 46(2A)(c)

Insert:

(ca) a Family Court of a State; or

9 Subsection 46(2B)

Transfer of proceedings from courts of summary jurisdiction Schedule 4

Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011 55

After "the court", insert "of summary jurisdiction".

10 After paragraph 46(3A)(a)

Insert:

(aa) a Family Court of a State;

11 Paragraph 69N(1)(a)

After "instituted in", insert "or transferred to".

12 Application of amendments

The amendments made by this Schedule apply in relation to

proceedings instituted, or transferred, on or after the commencement of

this Schedule.

Schedule 5 Administrative Appeals Tribunal fees

56 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 No. , 2011

Schedule 5--Administrative Appeals Tribunal

fees

Administrative Appeals Tribunal Act 1975

1 Section 29A

Repeal the section.

2 After section 69B

Insert:

69C Dismissal of application for non-payment of application fee

The Tribunal may dismiss an application to the Tribunal if:

(a) regulations under section 70 prescribe a fee to be payable in

respect of the application; and

(b) the fee has not been paid by the time worked out under

regulations under section 70.

3 At the end of section 70

Add:

(3) Without limiting the generality of subsection (1), the regulations

may make provision:

(a) prescribing fees to be payable in respect of proceedings

before the Tribunal; and

(b) for, or in relation to, the waiver (in whole or in part) of such

fees.

4 Application and saving provisions

(1)

Despite the amendment made by item 1, section 29A of the

Administrative Appeals Tribunal Act 1975, as in force immediately

before the commencement of that item, continues to apply on and after

that commencement in relation to applications lodged before that

commencement.

(2)

The amendment made by item 2 applies in relation to applications

lodged on or after the commencement of that item.

Commonwealth of Australia Bills

ACCESS TO JUSTICE (FEDERAL JURISDICTION) AMENDMENT BILL 2011