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ANU College of LawThe Australian National University 5 Fellows Road Acton ACT 2601
T +61 2 6125 0454 W law.anu.edu.auCRICOS #00120C
4 0 T H A N N I V E R S A R Y O F T H E F E D E R A L C O U R T O F A U S T R A L I A
8 & 9 S E P T E M B E R 2 0 1 7
Venue: Federal Court of Australia Law Courts Building, Queens Square, Sydney
Centre for Commercial LawCentre for International & Public LawANU College of Law
P R O G R A M
FRIDAY 8 SEPTEMBER 2017
9 am Welcome
> Professor Stephen Bottomley, Dean, ANU College of Law
9.05 – 10.30 am The role and future of the Federal Court within the Australian judicial system
> The Hon Chief Justice James Allsop AO, Federal Court of Australia
Excellence, innovation and courtesy: Federal Court procedure and modernity
> Professor Peta Spender, The Australian National University
The Federal Court of Australia and extra-judicial work
> Emeritus Professor Fiona Wheeler, The Australian National University
Chaired by: Associate Professor Pauline Ridge
10.30 – 11 am Morning tea
11 am – 12.30 pm Anti-discrimination: The history of the Federal Court’s human rights jurisdiction
> The Hon Justice Debra Mortimer, Federal Court of Australia
How does the court deal with facts on judicial review?
> The Hon Justice Alan Robertson, Federal Court of Australia
The Federal Court and constitutional law
> The Hon Justice John Griffiths, Federal Court of Australia and Professor James Stellios, The Australian National University
Chaired by: Emeritus Professor Fiona Wheeler
12.30 –1.30 pm Lunch
1.30 – 3 pm The contribution of the Federal Court to the development of Australian private international law
> Professor Mary Keyes, Griffith University
Misleading conduct before the Federal Court: Achievements and challenges
> Professor Elise Bant and Associate Professor Jeannie Paterson, University of Melbourne
Developing Australia’s competition law: The Federal Court’s contribution
> Mr Russell Miller AM, MinterEllison
Chaired by: Professor Peta Spender
3 – 3.30 pm Afternoon tea
3.30 – 5 pm National approaches to the conduct of intellectual property litigation in the Federal Court of Australia
> The Hon Justice Andrew Greenwood, Federal Court of Australia
The gatekeeper court – for the revenue or the taxpayer?
> Professor Miranda Stewart and Ms Rachel Davies, The Australian National University
Native title law
> Professor Mick Dodson AM, The Australian National University
Chaired by: Professor Stephen Bottomley
6.30 pm Conference dinner held at Strangers’ Dining Room & Lounge, Parliament of New South Wales, 6 Macquarie Street, Sydney
Dinner speaker: The Hon Sir Gerard Brennan AC KBE GBS
SATURDAY 9 SEPTEMBER 2017
9.30 – 11 am Corporations and insolvency jurisdiction of the Federal Court – from passer-by to chameleon lodger
> The Hon Justice Michelle Gordon, High Court of Australia
Remedies
> Professor William Gummow AC, The Australian National University
The law of admiralty: An ancient regime in a modern era
> The Hon Justice Neil McKerracher, Federal Court of Australia
Chaired by: Professor Simone Degeling
11 – 11.30 am Morning tea
11.30 am – 1 pm The Federal Court’s contribution to Australian workplace law
> Professor Joellen Riley, University of Sydney
Federal indictable offences: Has the autochthonous expedient run its course?
> The Hon Justice Mark Weinberg AO, Court of Appeal, Supreme Court of Victoria
The Federal Court and the development of the nation
> J K Kirk SC, NSW Bar
Chaired by: Professor James Stellios
1 pm Closing remarks
> Professor James Stellios, The Australian National University
The Hon Chief Justice James Allsop AO
Federal Court of Australia
THE ROLE AND FUTURE OF THE FEDER AL COURT WITHIN THE AUSTR ALIAN JUDICIAL SYSTEM
This paper will address the role of the Federal Court within the Australian judicial system from both a historical and contemporary perspective. It will provide an overview of the way in which proposals for an Australian superior federal court were conceived, and chart the Federal Court’s evolving role in light of its historical expansion as a court of general civil federal jurisdiction.
The paper will canvass some of the different ways in which the ‘role’ of the Court can be conceived – in terms of its jurisdiction, administrative architecture, practice, societal function and jurisprudence. The paper will conclude with some thoughts on the future of the Court and its importance as a national institution.
> From 1981 to 2001 Chief Justice Allsop practised at the Bar in New South Wales and elsewhere in Australia. He was appointed Senior Counsel in New South Wales in 1994 and Queen’s Counsel in Western Australia in 1998.
From 7 May 2001 to 1 June 2008 he served as a Judge of the Federal Court of Australia. From 2 June 2008 to 28 February 2013 he was President of the New South Wales Court of Appeal. He was appointed Chief Justice of the Federal Court of Australia as of 1 March 2013.
From 1981 to 2014 he taught part-time at the University of Sydney. He currently lectures part-time in maritime law at the University of Queensland and was appointed Adjunct Professor from 1 July 2016 for a period of 3 years.
In 2010, he was elected as an Honorary Bencher of the Middle Temple. In 2013, he was elected a member of the American Law Institute.
Professor Elise Bant and Associate Professor Jeannie Paterson
Melbourne Law School
MISLEADING CONDUCT BEFORE THE FEDER AL COURT: ACHIEVEMENTS AND CHALLENGES
The law of misleading conduct responding to s 18 of the Australian Consumer Law (formerly s 52 Trade Practices Act) has been strongly influenced by a series of landmark Federal Court decisions.
This body of work has helped not only to interpret the statutory norm and its remedial scheme, but to locate their operation within their broader common law and equitable contexts. However, with the ongoing proliferation of statutes replicating and modifying that regime across a myriad of general and specialised contexts comes the danger of developing incoherence in the law. Fortunately, this is a danger the Federal Court has already demonstrated that it is well-placed to address.
> Professor Elise Bant joined Melbourne Law School in 2008 and is the Co-convenor (with Professor Andrew Robertson) of the Obligations Group. Her main areas of teaching and research interests lie in the fields of unjust enrichment and restitution law, property, civil remedies, equity and trusts. She is author of The Change of Position Defence (Hart Publishing, Oxford 2009) and co-author (with Justice James Edelman) of Unjust Enrichment (Hart Publishing, Oxford, 2016), editor of two collections of essays, co-author of a leading Australian casebook on Remedies and has published over 50 articles, chapters and other scholarly works in her specialist fields. Elise is also a general editor of the Journal of Equity with Professor Simone Degeling (UNSW) and Professor Matthew Harding.
> Associate Professor Jeannie Marie Paterson joined Melbourne Law School in 2010 and is currently the Associate Dean (Juris Doctor). She researches and teaches in the areas of contracts, consumer protection and consumer credit law. She has published numerous articles on consumer law in Australia, and also in the ASEAN region and the United Kingdom. She is the co-author (with Andrew Robertson and Arlen Duke) of Principles of Contract Law (5th ed, Lawbook, 2016). Jeannie has also undertaken consultancy work, including recently for the ASEAN-Australia Development Cooperation Program (with Professors Caron Beaton-Wells, Melbourne Law School, Justin Malbon, Monash and Luke Nottage, Sydney University) and the Commonwealth Department of Treasury (Commonwealth Treasury) on behalf of Consumer Affairs Australia and New Zealand (CAANZ) (research coordinated by Professor Stephen Corones QUT).
Professor Mick Dodson AM
The Australian National University
NATIVE TITLE L AW
The Federal Court has been in existence 40 years; and has had jurisdiction over native title matters from 1994.
There were many aspects of the complex Native Title Act 1993 left to be resolved by the common law and the Courts rather than the legislature. It was also clear from the outset in the preamble and provisions of the Act and the mandate of the National Native Title Tribunal, that outcome by agreement rather than litigation was the preferred approach.
A B S T R A C T S & B I O G R A P H I E S
This presentation offers a few reflections on the evolution of Native Title and the role of the Federal Court.
> Professor Mick Dodson AM is Director of the National Centre for Indigenous Studies at The Australian National University and Professor of Law at the ANU College of Law. He completed a Bachelor of Jurisprudence and a Bachelor of Laws at Monash University. Professor Dodson also holds an honorary Doctor of Laws from the University of NSW. He worked with the Victorian Aboriginal Legal Service from 1976 to 1981, when he became a barrister at the Victorian Bar. He joined the Northern Land Council as Senior Legal Adviser in 1984 and became Director of the Council in 1990.
From August 1988 to October 1990, he was Counsel assisting the Royal Commission into Aboriginal Deaths in Custody. He has been a member of the Victorian Equal Opportunity Advisory Council and secretary of the North Australian Legal Aid Service. He is the current Chair of Council of the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), and is also a member of AIATSIS. He is the former Chairman of the National Aboriginal Youth Law Centre Advisory Board, and has been a member of the National Children’s & Youth Centre Board and the advisory panels of the Rob Riley and Koowarta Scholarships. Mick is a member of the Publications Committee for the University of New South Wales’ Australian Indigenous Law Review (formerly called the Australian Indigenous Law Reporter), and is on the Editorial Board of Australian Aboriginal Studies. He is a member of the New South Wales Judicial Commission and a former special commissioner with the Law Reform Commission of Western Australia. He is Chair of the ANU Reconciliation Action Plan Committee and a member of the Board of the Lingiari Foundation. He served on the board of Reconciliation Australia and was, until recently, its Co-Chair. He was a founding member and chairman of the Australian Indigenous Leadership Centre.
Professor Dodson has been a prominent advocate on land rights and other issues affecting Aboriginal and Torres Strait Islander peoples, as well as a vigorous advocate of the rights and interests of indigenous peoples around the world. He was the Co-Deputy Chair of the Technical Committee for the 1993 International Year of the World’s Indigenous People and was chairman of the United Nations Advisory Group for the Voluntary Fund for the Decade of Indigenous Peoples. He served for 5 years as a member of the Board of Trustees of the United Nations Indigenous Voluntary Fund and in January 2005, commenced a 3-year appointment as a member of the United Nations Permanent Forum on Indigenous Issues. He was subsequently reappointed for a further 3 years to December 2010.
Professor Dodson participated in the crafting of the text of the Declaration on the Rights of Indigenous Peoples in the United Nations Working Group on Indigenous Populations (WGIP), and the Inter-sessional Working Group of the Human Rights Commission which was adopted overwhelmingly in 2007 by the United Nations General Assembly. In 2009, he
was named Australian of the Year by the National Australia Day Council.
From September 2011 to February 2012 inclusive, Professor Dodson was at Harvard University where he was the Malcolm Fraser & Gough Whitlam Harvard Chair in Australian Studies and a Visiting Professor, Harvard Project on American Indian Economic Development. He was based at the Malcolm Wiener Center for Social Policy in the John F Kennedy School of Government.
The Hon Justice Michelle Gordon
High Court of Australia
CORPOR ATIONS AND INSOLVENCY JURISDICTION OF THE FEDER AL COURT: FROM PASSER-BY TO CHAMELEON LODGER
The 40 year history of the Federal Court’s corporations and corporate insolvency jurisprudence tracks Australia’s economic, political, social and legal history. From humble beginnings dabbling in the insolvencies law of the Territories, to the liberation of its corporations jurisdiction in 1991, through the minor set back of Re Wakim, and on to the mega-litigation in the wake of the Global Financial Crisis, the Federal Court has been an enduring part of Australia’s corporate and economic life. The Court has evolved with Australia as a nation on the international commercial stage, and its strength will continue to be essential to the country’s economic prosperity.
> Justice Michelle Marjorie Gordon was appointed to the High Court of Australia in June 2015. At the time of her appointment, she was a Judge of the Federal Court of Australia, a position to which she was appointed in April 2007.
Her Honour was born and educated in Perth. She graduated in law from the University of Western Australia. She did her Articles at Robinson & Cox (now Clayton Utz) and was admitted to practise in Western Australia in 1987. She moved to Melbourne in 1988 and worked at Arthur Robinson & Hedderwicks for four years. She was appointed a Senior Associate of that firm in 1992 and later that year joined the Victorian Bar. She was appointed Senior Counsel in 2003. She practised in state and federal courts principally in commercial, equity, taxation and general civil matters. She was appointed a Professorial Fellow of the Melbourne Law School in July 2015, where she has taught in the Masters Course since 1999.
The Hon Justice Andrew Greenwood
Federal Court of Australia
NATIONAL APPROACHES TO THE CONDUCT OF INTELLECTUAL PROPERT Y LITIGATION IN THE FEDER AL COURT OF AUSTR ALIA
Much of the fighting in World War I was characterised by trench warfare. On the Western Front, when 1,762 men died in one charge one morning having been ordered out of the trench to charge enemy machineguns, the response to that unsuccessful approach was to send another 1,624 men to their death the next morning in the same way. Similar things occurred day after day because decision makers in control of such processes unquestionably accepted that ‘that is what you do’ because ‘that is the way things are done’. There is no universal truth to that effect. These remarks address some changes over time to the conduct of intellectual property litigation and suggest some approaches to the future management by Judges of intellectual property litigation. The observations take into account some comparative experiences in that regard from other jurisdictions and, in particular, the United States.
> The Honourable Justice Andrew Greenwood is a Judge of the Federal Court of Australia. Justice Greenwood was appointed to the Court on 4 August 2005. He holds degrees in Arts and Law from the University of Queensland. Justice Greenwood is a National Coordinating Judge in the national practice area of the Court’s jurisdiction in Intellectual Property. Justice Greenwood is the President of the Australian Copyright Tribunal, a Presidential Member of the Australian Administrative Appeals Tribunal and a Member of the Australian Competition Tribunal.
Justice Greenwood is an Adjunct Professor in the TC Beirne School of Law at the University of Queensland. He is a Fellow of the Australian Academy of Law.
Justice Greenwood also holds an Honorary Doctor of Laws degree from Griffith University.
The Hon Justice John Griffiths and Professor James Stellios
Federal Court of Australia
The Australian National University
THE FEDER AL COURT’S CONTRIBUTION TO THE DEVELOPMENT OF CONSTITUTIONAL L AW
The development of constitutional law is the foundational enterprise of the Australian judiciary. It unites all courts in Australia, irrespective of their federal, State or territory character, or their
place in the judicial hierarchy, in a common and shared project. The Federal Court plays an important role in that enterprise, and its very creation gave rise to important constitutional implications. The history of the Court’s development reveals three important institutional questions faced by the Court’s creation. First, the establishment of a lower federal court, of coordinate status with State Supreme Courts, presented jurisdictional difficulties. These difficulties ultimately would need a constitutional solution for the effective operation of the Federal Court. Secondly, the Federal Court was created to alleviate the High Court’s workload to enable the High Court to focus on its constitutional function. What role would a lower federal court play in the development of constitutional law when the very purpose of its creation was to allow the High Court to play that role? Thirdly, many questions of constitutional law concern the scope of State power. What role would a lower federal court play in determining constitutional questions about State power? This paper addresses these three institutional dimensions of the Federal Court’s creation.
> John Griffiths has been a Justice of the Federal Court since April 2012. Prior to his appointment, he practised as a barrister for 17 years. He was made a Silk in 2001. He practised extensively in public law and commercial matters. He is the author of many papers and articles on a wide range of legal topics, including public law. He is one of three national coordinating Judges in the Federal Court’s national practice area involving constitutional law, administrative law and human rights. He is a graduate of the Australian National University.
> Professor James Stellios is the Director of the Centre for International and Public Law at the ANU Law School. His primary research interest is constitutional law, and he has published widely in that field, including The Federal Judicature: Chapter III of the Constitution (LexisNexis, 2010) and the sixth edition of Professor Leslie Zines’ classic work, The High Court and the Constitution (The Federation Press, 2015). He is also a barrister at 6 St James Hall Chambers and has appeared as junior counsel in High Court and Federal Court cases. Prior to joining the ANU, he was Counsel Assisting the Solicitor-General of the Commonwealth, David Bennett QC, and in the past has been a lawyer with the Australian Government Solicitor and a public law consultant for Clayton Utz and Sparke Helmore.
Professor William Gummow AC
The Australian National University
REMEDIES
When lamenting the absence of Chancery practitioners from the present membership of the UK Supreme Court, Lord Millett emphasised that ‘Equity is not a set of rules but a state of mind’ which is focussed upon shaping the appropriate relief in the case at hand. This recalls the statement of Sir Nigel Bowen to the writer that in recruiting for the newly established Federal Court he had sought ‘equity minds’.
The jurisdiction of the new Court was based primarily in statutes which included complex remedial provisions not replicating the general law and requiring care and foresight in their application. Part VI of what was then the Trade Practices Act 1974 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) were significant examples.
Further, the development of the accrued jurisdiction in questions of general law threw the spotlight upon the phrase ‘as the Court thinks appropriate’ in the general remedial provision of s 23 of the Federal Court of Australia Act 1976 (Cth). The development in Australia of what has become known as ‘case management’, discovery before suit, the class action, the assets preservation order and, most significantly, of the remedial constructive trust are examples of the application of the cast of judicial mind which Sir Nigel had fostered in the new Court.
> Professor William Gummow AC is a Professor of Law at the ANU Law School and Sydney Law School. He is also a Non-Permanent Judge of the Hong Kong Court of Final Appeal. He is a former Justice of the High Court of Australia, serving from 1995 until his retirement from the Court in 2012. Prior to that time, he was a Federal Court Judge from 1986-1995.
He graduated from the University of Sydney with a Bachelor of Arts and Master of Laws. After 10 years in practice as a solicitor, he was admitted to the New South Wales Bar in 1976. He was appointed a Queen’s Counsel in 1986. For 30 years he lectured part-time at the University of Sydney. He is the author and editor of several texts on equity and trusts.
Professor Mary Keyes
Griffith University
THE CONTRIBUTION OF THE FEDER AL COURT TO THE DEVELOPMENT OF AUSTR ALIAN PRIVATE INTERNATIONAL L AW
This paper will outline the influential contributions that the Federal Court has made to the development of a distinctively Australian private international law, particularly in the area of jurisdiction. It will also consider how the court has addressed the challenges of dealing with the Australian Consumer Law and the Trade Practices Act in transnational commercial litigation. Finally, it will consider the competition for international commercial dispute resolution, and the Federal Court’s position in that context.
> Mary Keyes is Professor and Deputy Head of School for Research at Griffith Law School in Brisbane, Australia. She researches principally in private international law, particularly in the areas of jurisdiction and the use of agreements. She is co-author of Private International Law in Australia (3rd ed, 2015, with Reid Mortensen and Richard Garnett). She is currently working on a number of projects which critically consider the use of party autonomy in private international law. Professor Keyes will give a special course at the Hague Academy of International Law in the summer session of 2020.
J K Kirk SC
NSW Bar
THE FEDER AL COURT AND THE DEVELOPMENT OF THE NATION
The legal and regulatory landscape has changed significantly in Australia over the last 40 years, connected in turn to broader social and economic developments. The regulatory reach of the Commonwealth has expanded substantially, for a range of reasons, and with a range of consequences. This paper examines some of these issues, linking them to the evolution and future of the Federal Court.
> Jeremy Kirk SC practices at the NSW Bar, including in commercial and public law at both the trial and appellate level. He studied at the Australian National University and the University of Oxford.
The Hon Justice Neil McKerracher
Federal Court of Australia
THE L AW OF ADMIR ALT Y: AN ANCIENT REGIME IN A MODERN ER A
Despite its antiquity, the law of Admiralty in its modern form has evolved to meet the international maritime world’s constantly developing yet integrated and technological environment. Australia is a major consumer of maritime services in the world market. In this unusually hands on area, over the 40 years of its operation the Federal Court has worked on two combined fronts – the judicial and the practical. And has necessarily had two regions in mind – national and international.
> Justice McKerracher has been a Judge of the Federal Court of Australia since 2007. Prior to his appointment he appeared as Queen’s Counsel in and advised in a broad range of commercial and civil disputes. He also served as an Acting Commissioner of the Corruption & Crime Commission (WA), Senior Sessional Member State Administrative Tribunal and a Commissioner (Acting Judge) of the Supreme Court of Western Australia. He was the Chairman of WA Bar Chambers Ltd and has also chaired a number of professional and community organizations.
Mr Russell Miller
Minter Ellison
DEVELOPING AUSTR ALIA’S COMPETITION L AW: THE FEDER AL COURT’S CONTRIBUTION
The Federal Court of Australia, established only 2 years after enactment of Australia’s modern competition law, has played
a crucial part in the development and application of that law and in its acceptance today as a fundamental contributor to social welfare. Save for the occasional appeal to the High Court, responsibility for judicial oversight of that law and its interpretation has fallen to the Federal Court. This paper will chart the early beginnings by considering the court’s first competition decisions and also discusses the contribution the Court has made to the development of competition law over the past 40 years.
> Russell Miller is a member of Minter Ellison’s Australasian Competition Group and a Fellow of the Centre for Strategy and Governance. He is an ANU alumnus and former adjunct professor. He is the author of Miller’s Australian Competition and Consumer Law Annotated (39th ed, Thomson Reuters, 2007) and Miller’s Australian Competition Law & Policy (3rd ed, Thomson Reuters, 2012). He was made a Member of the Order of Australia in 2005 for service to the legal profession in the fields of international and business law.
The Hon Justice Debra Mortimer
Federal Court of Australia
ANTI-DISCRIMINATION: THE HISTORY OF THE FEDER AL COURT’S HUMAN RIGHTS JURISDICTION
Only recently, since the introduction of the National Court Framework in 2013, has the Federal Court identified itself as having a ‘human rights’ jurisdiction. That label is now applied to all proceedings involving complaints of unlawful discrimination. Mostly they arise under the four pieces of federal legislation which confer jurisdiction in this Court after a complaint has been terminated by the Australian Human Rights Commission. The Court has also heard cases in its accrued jurisdiction under the Victorian Charter of Rights and Responsibilities Act 2006.
Justice Mortimer will trace the development of the Court’s anti-discrimination jurisdiction, and share some snapshots about the nature and number of proceedings in that jurisdiction over the Court’s 40 year history.
> Justice Mortimer was appointed to the Federal Court in July 2013, based in Melbourne. She hears first instance cases in the Court’s practice areas of Administrative and Constitutional Law and Human Rights, Native Title, Employment and Industrial Law and Consumer and Regulatory Law. Prior to her appointment, Justice Mortimer was a member of the Victorian Bar and was appointed Senior Counsel in 2003. She remains a Senior Fellow at Melbourne Law School and a member of the Advisory Board of the Centre for Comparative Constitutional Studies.
As a barrister, Justice Mortimer’s practice was principally in public law, together with anti-discrimination and extradition law, and in all areas she acted for both applicants and respondents, and for and against government, in state and federal jurisdictions including in the High Court. She had a substantial public interest practice, particularly in migration
law, environmental law and anti-discrimination law, and was involved in many ground-breaking cases over the last 20 years.
Professor Joellen Riley
University of Sydney
THE FEDER AL COURT’S CONTRIBUTION TO AUSTR ALIAN WORKPL ACE L AW
Since 25 May 1997, the Federal Court of Australia has exercised jurisdiction over matters arising under federal workplace relations laws, and, as a consequence of the complexity of such matters, has been influential in the development of Australian employment contract law. This is a vitally important field of law, affecting the fundamental economic and social relationships upon which working citizens build their lives.
This paper considers a selection of important matters upon which the Federal Court has adjudicated, in ways that influence our understanding of the respective rights and obligations of working people in Australia today.
> Professor Joellen Riley is Dean and Professor of Labour Law at the University of Sydney Law School. She holds degrees in Law from the universities of Sydney and Oxford, and has been teaching and researching in the field of employment and industrial law since 1998. She joined academia after a short time in commercial legal practice, and has served as a consultant to specialist employment law firms, most recently People + Culture Strategies in Sydney. Her publications include Employee Protection at Common Law (Federation Press, 2005), and the The Law of Work (OUP, 2007 and 2011) (with Rosemary Owens and Jill Murray). She is also one of the authors on the most recent edition of Macken’s Law of Employment (Thomson, 2016) and has written a number of books on federal workplace legislation.
The Hon Justice Alan Robertson
Federal Court of Australia
HOW DOES THE COURT DEAL WITH FACTS ON JUDICIAL REVIEW?
Fundamental to the distinction between merits review and judicial review is how the court or decision-maker approaches the facts. There is a marked contrast between an appeal on a question of law in the Australian federal system and how the relationship between the tribunals and the court is considered in England: compare, for example, Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 and Criminal Injuries Compensation Authority v Hutton [2016] EWCA Civ 1305. There is also a marked difference between the approach to facts on judicial review in E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044 and what is said by the
High Court in, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [114]. But this is not to say that no fact-finding can found jurisdictional error for the purposes of s 39B of the Judiciary Act 1903 (Cth) or a ground of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). What was said by Brennan J in Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77 does not go so far.
This paper will consider the questions of jurisdictional facts; when new evidence will be admitted on judicial review; when ‘no evidence’ may be made out; overlooking important material facts, as in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; whether credibility issues are ‘par excellence’ issues of fact in light of CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; and fact-finding which may be said to be irrational or illogical as considered in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR.
> Justice Alan Robertson is a graduate of the Australian National University. He was admitted in 1980 as a legal practitioner of the Supreme Court of the Australian Capital Territory. From 1981 to 1983, he worked as assistant to the Commonwealth Solicitor-General, Sir Maurice Byers. In 1983, Justice Robertson joined the New South Wales Bar and, in 1995, was appointed Senior Counsel. His area of specialisation was public law, including constitutional and administrative law, revenue law, competition law and appeals. He was for many years convenor of the Constitutional and Administrative law section of the New South Wales Bar Association. He was a part time member of the Administrative Review Council between 1992 and 1997. He was appointed a Judge of the Federal Court in April 2011, based in Sydney. He has been appointed a Deputy President of the Administrative Appeals Tribunal and a Deputy President of the Australian Competition Tribunal.
Professor Peta Spender
The Australian National University
EXCELLENCE, INNOVATION AND COURTESY: FEDER AL COURT PROCEDURE AND MODERNIT Y
The tradition of the Federal Court was described by its first Chief Justice, Sir Nigel Bowen, as embodying excellence, innovation and courtesy. The last forty years have seen the rise of statutory rights and remedies, the conferral of collective redress, as well as the emergence of the modern regulator and the managerial judge.
This paper will examine the Federal Court’s evolving procedure through the lens of these changes, as exemplified by its class actions, native title and individual docket jurisprudence.
> Professor Peta Spender is Deputy Dean of the ANU College of Law and a Fellow of the Australian Academy of Law.
She is also a Presidential Member of the ACT Civil and Administrative Tribunal. Her research passions straddle corporations/financial markets law and litigation. She has published widely in both areas and made submissions to various law reform bodies including the James Hardie Special Commission of Inquiry. Peta is a co-author of leading Australian books on litigation and corporate law and is currently working on a project about process and substance in civil justice systems.
Professor Miranda Stewart and Ms Rachel Davies
The Australian National University
THE GATEKEEPER COURT: FOR THE REVENUE OR THE TA XPAYER?
Since the establishment of the Federal Court of Australia, it has become the leading tax court in the nation. Twenty years after establishment of the Federal Court of Australia, Mason CJ of the High Court laid down that the Full Court of the Federal Court would, in most tax cases, be the final court of appeal, subject to a limited exception for questions of ‘fundamental principle’. The Tax Office lost the appeal in the Federal Court in that case of Westfield and was, by some measures, a sore loser. Since then, the High Court may have a renewed interest in hearing tax appeals. Even so, the Federal Court or its court of appeal remains the final port of call for most taxpayers and the ATO. In the spirit of tax inquiry into the nature of ‘income’, this paper will do both a ‘wide survey and an exact scrutiny’ of aspects of the Federal Court record in taxation matters over the last 40 years.
> Professor Miranda Stewart is the Director of the Tax and Transfer Policy Institute, Crawford School of Public Policy, The Australian National University and a Professor at the University of Melbourne Law School. Miranda researches and teaches on a wide range of taxation law and policy topics including business and personal income taxation, not for profits, tax avoidance and sham, international tax and processes of tax reform. Recent publications include Death and Taxes (6th ed, Thomson Reuters, 2014 with Michael Flynn); Not for profit law: Theoretical and Comparative Perspectives (Cambridge University Press, 2014, edited with Ann O’Connell and Matthew Harding) and Sham Transactions (Oxford University Press, 2014 with Edwin Simpson).
Miranda holds a current legal practicing certificate and is admitted to practice as a lawyer in Victoria and the High Court of Australia. She is a chartered tax advisor with The Tax Institute, a member of the Scientific Committee of the International Fiscal Association and of the Law Council of Australia Tax Committee. She studied mathematics and law at the University of Sydney and has a LLM (International Taxation) from New York University School of Law. Miranda previously held positions at New York University; in a major Australian law firm and in the Australian Tax Office working
on business tax policy and legislation. She has been an invited visitor and lecturer at the Oxford University Centre for Business Taxation, UK; NYU School of Law; University of Florida, US; Osgood Hall Law School, York University and University of Toronto Law School, Canada.
> Ms Rachel Davies is a recent JD graduate of Melbourne Law School, and holds a Master’s of Criminal Justice and Criminology from UNSW and a Bachelor of Arts degree from the University of British Columbia. She is a research assistant to Prof Miranda Stewart and is completing requirements for admission to legal practice in Australia.
The Hon Justice Mark Weinberg AO
Court of Appeal , Supreme Court of Victoria
FEDER AL INDICTABLE OFFENCES: HAS THE ‘AUTOCHTHONOUS EXPEDIENT’ RUN ITS COURSE?
The framers of the Constitution adopted what Sir Owen Dixon famously described as the ‘autochthonous expedient’ when they devised the system of courts that would operate in this country. They specifically declined, in that regard, to follow the approach taken in the United States, which had opted for a ‘dual court’ system.
However, since the establishment of the Federal Court in 1976, the autochthonous expedient has been significantly eroded, if not ‘buried’, at least in relation to civil matters.
Until recently, there has been no equivalent modification of the autochthonous expedient in relation to federal criminal law. This paper considers whether the time is ripe to expand the indictable criminal jurisdiction of the Federal Court into areas well beyond cartel offences. It suggests that there is a reasonable case to be made for such an adjustment.
> Justice Mark Weinberg was admitted to practice in New South Wales in 1974, and in Victoria in 1975, and his name was entered on the roll of barristers and solicitors of the High Court in 1979.
In 1975 he joined the academic staff of the University of Melbourne, where he held various positions in the Faculty of Law, culminating in Dean of the Faculty from 1984 to 1985, and was Commonwealth Director of Public Prosecutions from 1988 to 1991.
Justice Weinberg was appointed to the Court of Appeal, Supreme Court of Victoria in July 2008. His Honour was a Judge of the Federal Court of Australia from 1998 to 2008 and previously held the following appointments: Deputy President, Federal Police Disciplinary Tribunal; Non-resident Judge, Supreme Court of Fiji; Judge, Supreme Court of the Australian Capital Territory; and Chief Justice, Supreme Court of Norfolk Island.
Emeritus Professor Fiona Wheeler
The Australian National University
THE FEDER AL COURT OF AUSTR ALIA AND EXTR A- JUDICIAL WORK
Judges of the Federal Court of Australia have engaged in more extra-judicial work for Australian governments than members of any other federal court. This has ranged from issuing telecommunication interception warrants, service on bodies like the AAT, conduct of Royal Commissions and appointment to substantive executive posts including, in one instance, as ASIO Director-General.
At the time of the Court’s establishment in the 1970s, many Australian judges undertook work of this kind. Yet, for federal judges, it posed an obvious tension with the separation of federal judicial power under the Australian Constitution. That tension led the High Court in the 1980s and 1990s, in a series of cases concerning the Federal Court, to develop an incompatibility test that today limits extra-judicial work by all Australian judges. As a result, certain past instances of extra-judicial work by Federal Court judges would now be unconstitutional. More generally, the modern Court has retreated from some types of extra-judicial activity previously undertaken by its members.
This paper examines this shift over the life of the Court through the lens of constitutional law, public policy and the conventions of judicial office. While it is argued that a narrowing of acceptable forms of extra-judicial work by Australian judges is an appropriate response to changing times, any account of the first 40 years of the Federal Court must acknowledge the important contribution made by its members to public service outside the courtroom.
> Fiona Wheeler is an Emeritus Professor in the ANU College of Law, Australian National University, where she served in roles including Head of School, Deputy Dean and Chair, ANU Academic Board. Her research is primarily in constitutional law, with a particular interest in courts and the judicial system and the history of the High Court of Australia. Her doctorate on the separation of judicial power under the Australian Constitution was awarded the ANU JG Crawford Prize (2000). She has been an Honorary Harold White Fellow, National Library of Australia (2009), delivered a High Court Public Lecture (2011), the Winterton Memorial Lecture (2014) and is a Fellow of the Australian Academy of Law.
N O T E S
Centre for Commercial Law
The ANU College of Law Centre for Commercial Law is a centre of excellence in private and government commercial law reform, advice and policy evaluation, and a leader in commercial law research and teaching. It also provides a national forum for academics, practitioners and regulators working in private and government commercial law.
We host an annual conference as well as regular seminars and workshops. Our members also run consultancies for legal practitioners, government and the business community on commercial law issues, particularly as they affect government commercial practice.
Our researchers specialise in emerging commercial law areas, particularly corporatisation, privatisation, government contracting, globalisation and international aspects of commercial law.
Research and projects undertaken at the Centre also cover ‘traditional’ areas of commercial practice such as bankruptcy and insolvency, companies, securities, contracts, equity, intellectual property, personal property securities, trade practices and taxation.
The Centre was established in 1998 and its current Director is Associate Professor Pauline Ridge.
Centre for International & Public Law
Since its establishment in 1990, the Centre for International and Public Law has been advancing the understanding of international and public law. The Centre’s members are leading experts in their fields of international and public law, and their research has had considerable impact on public policy at the local, national and international levels.
Capitalising on its proximity to the seat of our national government, the Centre has built strong connections with the federal government, including the Attorney General’s Department and the Department of Foreign Affairs and Trade, as well as other key national institutions, including the High Court.
The Centre runs two annual lectures – the Geoffrey Sawer Lecture and the Kirby Lecture in International Law and hosts two major annual conferences – the Australian and New Zealand Society of International Law Conference and the Public Law Weekend. The Centre also runs a seminar series in conjunction with Attorney General’s Department and the Department of Foreign Affairs and Trade, and regular public lectures, seminars and workshops. Through its visitor program, the Centre hosts international and domestic scholars, judges and government lawyers.
The Centre’s current Director is Professor James Stellios.
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