JURISDICTION OF COURTS LEGISLATION AMENDMENT ACT 2002 NO. 70, 2002 - SCHEDULE 2 - Amendments relating to the Federal Court of Australia

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JURISDICTION OF COURTS LEGISLATION AMENDMENT ACT 2002 NO. 70, 2002 - SCHEDULE 2

- Amendments relating to the Federal Court of Australia

Part 1—Amendments

Federal Court of Australia Act 1976

1 Section 4

Insert:

audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places.

2 Section 4

Insert:

video link means facilities (for example, closed-circuit television facilities) that enable audio and visual communication between persons in different places.

3 Division 2 of Part II

Repeal the Division.

4 Subsection 18N(4)

Omit ", other than the Registrar and the Deputy Sheriffs,", substitute "(other than the Registrar, the Deputy Sheriffs and the Marshals)".

5 Subsection 18N(5)

After "Sheriffs", insert "and the Marshals".

6 Subsection 20(1A)

After "that matter", insert ", or a specified part of that matter,".

7 Subsection 20(2)

Omit "The", substitute "Subject to subsections (3) and (5), the".

8 Subsection 20(2)

Omit "the tribunal", substitute "a tribunal".

9 At the end of section 20

Add:

(3): If the matter coming before the Court as mentioned in subsection (2) is an application:

(a): for leave or special leave to institute proceedings in the Court; or
(b): for an extension of time within which to institute proceedings in the Court; or
(c): for leave to amend the grounds of an application or appeal to the Court; or
(d): to stay a decision of the tribunal or authority mentioned in subsection (2);

the matter may be heard and determined by a single Judge or by a Full Court.

(4): The Rules of Court may make provision enabling applications of the kind mentioned in subsection (3) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.
(5): In a matter coming before the Court as mentioned in subsection (2), a single Judge or a Full Court may:

(a): join or remove a party; or
(b): make an order (including an order for costs) by consent disposing of the matter; or
(c): make an order that the matter be dismissed for want of prosecution; or
(d): make an order that the matter be dismissed for failure to comply with a direction of the Court; or
(e): give directions about the conduct of the matter, including directions about:

(i): the use of written submissions; and
(ii): limiting the time for oral argument.

(6): The Rules of Court may make provision enabling the powers in subsection (5) to be exercised, subject to conditions prescribed by the Rules, without an oral hearing.

11 After paragraph 25(2B)(b)

Insert:

(ba): make an order that an appeal to the Court be dismissed for want of prosecution; or
(bb): make an order that an appeal to the Court be dismissed for failure to comply with a direction of the Court; or

12 Paragraph 27(b)

Omit "telephone", substitute "audio link".

13 Paragraph 37(b)

After "signed", insert "(including by way of electronic signature)".

14 At the end of section 37

Add:

(2): For the purposes of paragraph (1)(b), a document is taken to be signed by the Registrar if the electronic signature of the Registrar is applied to the document by an officer acting with the authority of the Registrar.
(3): In this section:

electronic signature of a person means the person's unique identification in an electronic form that is approved by the Registrar.

15 At the end of paragraphs 45(2)(a), (b) and (c)

Add "or".

16 After paragraph 45(2)(c)

Insert:

(ca): an employee of the Commonwealth who is:

(i): authorised under paragraph 3(c) of the Consular Fees Act 1955 ; and
(ii): exercising his or her function in that place; or

(cb): an employee of the Australian Trade Commission who is:

(i): authorised under paragraph 3(d) of the Consular Fees Act 1955 ; and
(ii): exercising his or her function in that place; or

17 Paragraph 45(2)(e)

After "(c)", insert ", (ca), (cb)".

18 At the end of subsection 47(1)

Add:

: Note: For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

19 Subsections 47(1A), (1B) and (1C)

Repeal the subsections.

20 Subsection 47(6)

Omit "the foregoing provisions of this section", substitute "this section and section 47A".

21 At the end of subsection 47(6)

Add:

: Note: For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

22 After section 47

Insert:

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

(1): The Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.

: Note: See also section 47C.

(2): The testimony must be given on oath or affirmation unless:

(a): the person giving the testimony is in a foreign country; and
(b): either:

(i): the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or
(ii): the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and

(c): the Court or the Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

(3): If the testimony is given otherwise than on oath or affirmation, the Court or the Judge is to give the testimony such weight as the Court or the Judge thinks fit in the circumstances.
(4): The power conferred on the Court or a Judge by subsection (1) may be exercised:

(a): on the application of a party to the proceedings; or
(b): on the Court's or Judge's own initiative.

(5): This section applies whether the person giving testimony is in or outside Australia, but does not apply if the person giving testimony is in New Zealand.

: Note: See the Evidence and Procedure (New Zealand) Act 1994 .

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

(1): The Court or a Judge may, for the purposes of any proceeding, direct or allow a person:

(a): to appear before the Court or the Judge; or
(b): to make a submission to the Court or the Judge;

by way of video link, audio link or other appropriate means.

: Note: See also section 47C.

(2): The power conferred on the Court or a Judge by subsection (1) may be exercised:

(a): on the application of a party to the proceedings; or
(b): on the Court's or Judge's own initiative.

(3): This section applies whether the person appearing or making the submission is in or outside Australia, but does not apply if the person appearing or making the submission is in New Zealand.

: Note: See the Evidence and Procedure (New Zealand) Act 1994 .

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

Video link

(1): The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link:

(a): the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person ) who is:

(i): giving the testimony; or
(ii): appearing; or
(iii): making the submission;

(b): the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting;
(c): such other conditions (if any) as are prescribed by the Rules of Court in relation to the video link;
(d): such other conditions (if any) as are imposed by the Court or the Judge.

(2): The conditions that may be prescribed by the Rules of Court in accordance with paragraph (1)(c) include conditions relating to:

(a): the form of the video link; and
(b): the equipment, or class of equipment, used to establish the link; and
(c): the layout of cameras; and
(d): the standard of transmission; and
(e): the speed of transmission; and
(f): the quality of communication.

Audio link

(3): The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to an audio link unless the Court or the Judge is satisfied that the following conditions are met in relation to the audio link:

(a): the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom or place to hear the person (the remote person ) who is:

(i): giving the testimony; or
(ii): appearing; or
(iii): making the submission;

(b): the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting;
(c): such other conditions (if any) as are prescribed by the Rules of Court in relation to the audio link;
(d): such other conditions (if any) as are imposed by the Court or the Judge.

(4): The conditions that may be prescribed by the Rules of Court in accordance with paragraph (3)(c) include conditions relating to:

(a): the form of the audio link; and
(b): the equipment, or class of equipment, used to establish the audio link; and
(c): the standard of transmission; and
(d): the speed of transmission; and
(e): the quality of communication.

Other appropriate means

(5): The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to an appropriate means other than video link or audio link unless the Court or the Judge is satisfied that the following conditions are met in relation to that means:

(a): the conditions (if any) as are prescribed by the Rules of Court in relation to that means;
(b): such other conditions (if any) as are imposed by the Court or the Judge.

Eligible persons

(6): For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Court or a Judge considers should be treated as eligible persons for the purposes of that proceeding.

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

If, in the course of an examination or appearance of a person by video link, audio link or other appropriate means in accordance with this Part, it is necessary to put a document to the person, the Court or a Judge may direct or allow the document to be put to the person:

(a): if the document is physically present in the courtroom or other place where the Court or the Judge is sitting:

(i): by causing a copy of the document to be transmitted to the place where the person is located; and
(ii): by causing the transmitted copy to be put to the person; or

(b): if the document is physically present in the place where the person is located:

(i): by causing the document to be put to the person; and
(ii): by causing a copy of the document to be transmitted to the courtroom or other place where the Court or the Judge is sitting.

47E Administration of oaths and affirmations

An oath to be sworn, or an affirmation to be made, by a person (the remote person ) who is to give testimony by video link, audio link or other appropriate means in accordance with this Part may be administered:

(a): by means of the video link, audio link or other appropriate means in a way that, as nearly as practicable, corresponds to the way in which the oath or affirmation would be administered if the remote person were to give testimony in the courtroom or other place where the Court or the Judge is sitting; or
(b): if the Court or the Judge allows another person who is present at the place where the remote person is located to administer the oath or affirmation—by that other person.

47F Expenses

(1): The Court or a Judge may make such orders as the Court or the Judge thinks just for the payment of expenses incurred in connection with:

(a): the giving of testimony by video link, audio link or other appropriate means in accordance with this Part; or
(b): the appearance of a person by video link, audio link or other appropriate means in accordance with this Part; or
(c): the making of submissions by video link, audio link or other appropriate means in accordance with this Part.

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

47G New Zealand proceedings

Sections 47A to 47F do not affect the operation of the Evidence and Procedure (New Zealand) Act 1994 .

23 Paragraphs 59(2)(ta), (tb) and (v)

Omit "telephone", substitute "audio link".

24 Paragraph 59(2A)(a)

Omit "telephone", substitute "audio link".

25 Application of amendments

(1) The amendment made by item 6 applies in relation to matters coming before the Court before, on or after the commencement of this item.
(2) The amendments made by items 7, 8 and 9 apply in relation to matters coming before the Court after the commencement of this item.
(4) The amendment made by item 11 applies in relation to appeals to the Court brought after the commencement of this item.
(5) The amendments made by items 13 and 14 apply in relation to documents issued from the Court after the commencement of this item.
(6) The amendments made by items 1, 2, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 apply in relation to proceedings instituted in the Court before, on or after the commencement of this item.

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