Page 4382 - Week 14 - Thursday, 28 November 2013
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I am also proposing a number of minor amendments to the committal of matters in the Magistrates Court to introduce greater flexibility and a degree of judicial discretion, similar to other jurisdictions. I am proposing that part 3.5 of the Magistrates Court Act, which deals with proceedings for indictable offences, be amended, as there is currently no mechanism under the act for the court to dispense with formal requirements or for the parties to consent to a committal. This change will allow one or more provisions of this part to be dispensed with by the Magistrates Court, but only if the interests of justice require, in line with other jurisdictions. These changes will help lessen court delays, contain party costs and streamline administrative processes.
In response to plaintiff lawyers’ concerns about the transfer of proceedings from or to the Supreme Court, I am proposing an amendment to section 268 of the Magistrates Court Act to clarify that the statutory test for a transfer of proceedings applies at the time a transfer is made. This amendment will remove the risk of a challenge to an order transferring a matter to the Magistrates Court and remove any doubt about applicable procedures.
On advice from the Government Solicitor’s Office, I am proposing to repeal two sections in the Magistrates Court Act dealing with the Children’s Court. These sections prevent a challenge in any court to the Chief Magistrate’s decision to assign or not to assign a matter to another magistrate. They also prevent a person from seeking common law prohibition, mandamus or injunctive relief in any court.
There is High Court authority to the effect that any legislative provision that purports to remove from the Supreme Court the power to review decisions of the Magistrates Court for jurisdictional error is beyond the power of the Legislative Assembly. In the interests of certainty, I propose that these two sections be repealed.
The bill will also amend the ACT Civil and Administrative Tribunal Act 2008, following a recent ACT Supreme Court ruling on costs, to clarify that the tribunal has power to award incidental costs, other than the filing fee for the application. If the tribunal decides an application in favour of the applicant, it is only fair that the tribunal is able to award other incidental costs, which the applicant has incurred, in bringing the application before the tribunal. I am proposing therefore an amendment to section 48(2)(a) to allow the tribunal to award costs including any other fees incurred by the applicant that the tribunal considers necessary for the application. These other fees would include, for example, company or business name search fees, subpoena filing fees or hearing fees.
Following a request from the General President of the ACAT, I am also proposing an amendment to the unworkable and unhelpful 12-week time limit for a tribunal interim order to expire. The limitation on interim orders was always intended to achieve a quick, completed hearing. However, there are a number of tribunal cases where the time limit can lead to unrealistic filing timetables that compromise procedural fairness. The Solicitor-General, the Welfare Rights and Legal Centre and the Bar Association have also identified the limitation as causing problems and adding to an applicant’s costs and have called for its removal.
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